Gamble & Ghevaert

There is no denying that the demand for surrogacy is rising. It is no longer the taboo subject it once was, with India and certain US states widely reported as surrogacy “hotspots” and high profile celebrities, such as Sarah Jessica Parker, having embraced surrogacy. Restrictive laws in the UK are driving increasing numbers of British people abroad for surrogacy and many are unwittingly falling foul of English law as a result with serious consequences. The middle ground, which England adopted decades ago to deal with small numbers of altruistic surrogacy arrangements, can no longer cope with the realities of widely available foreign commercial surrogacy. English surrogacy law is now demonstrably inadequate.

The question is what should be done about it? The problem is complex and it raises difficult ethical issues.

One of the most basic objectives of English surrogacy law has been to restrict the payment of more than reasonable expenses to surrogate mothers, reflecting concerns about the exploitation of surrogate mothers, commodification of surrogate-born children and contravention of social beliefs that, just as body parts cannot be sold, neither should such intimate services.

Existing surrogacy law was also made to reflect the sanctity of marriage and in the belief that no mother should be forced to hand over a baby to whom she has given birth. As a result English law states that the surrogate mother is always the legal mother of the surrogate born child (even if the commissioning mother’s or donor eggs have been used) and that the surrogate’s husband is always the legal father unless it can be shown he did not consent to the surrogacy arrangement (which is rare in practice).

The net legal result is that British couples conceiving abroad using a married surrogate (and most surrogates tend to be married as they are deemed to be more stable and secure) have no legal connection with their surrogate-born child. The legal parents are the surrogate mother and her husband. The commissioning parents have no right to care for the child in the UK, may fall foul of immigration law and entry clearance provisions and cannot confer British citizenship. To make matters worse, they are likely to have paid more than reasonable expenses if their payments to the surrogate mother contained any element of a “reward”. The reward element then requires close judicial scrutiny and authorisation as part of a complex parental order application to reassign legal parenthood from the surrogate parents to the commissioning parents and resolve the legal problems.

Solution

The long term solution must be changes in the law. This needs joined up thinking to take into account other legislation (most notably immigration and children law). But inevitably, there will be no quick fix, leaving increasing numbers of people in a legal minefield.

Legislative change requires public debate and the government should consider commissioning an up to date in-depth report on surrogacy. The government last commissioned such a report in 1997 (The Brazier Report) although no action was ever taken to implement its recommendations. Surrogacy needs to be revisited and examined from the perspective of life as it is now – with ready access to the internet and more accessible fertility treatment worldwide. Difficult ethical and moral questions need examination and this is a challenging exercise requiring the best minds and a cross section of society.

In the meantime, there needs to be better access to good quality information about surrogacy and the legal implications. At present, all too often people discover the legal difficulties after conception or birth and are then caught like rabbits in a headlight. Fertility clinics, public bodies, not for profit institutions and lawyers need to do more to communicate the issues effectively to those contemplating or undergoing surrogacy.

The issue of commercial payments needs careful review. Is it right or fair and reasonable to continue to prohibit commercial surrogacy? The current middle ground approach, which allows the authorisation of commercial payments by a judge after the event, is a costly, lengthy and cumbersome way of dealing with matters on a case by case basis. Commercial surrogacy is a ticking time-bomb and one that looks set to explode.

The issue of legal parenthood needs re-examination. Should a surrogate mother’s husband be treated as legal father (even where he has no biological connection)? If not, this may be one way of short-circuiting some of the practical issues associated with foreign surrogacy, affording the commissioning parents some legal rights and responsibilities for their surrogate child automatically from birth. However, it would not protect and resolve the commissioning mother’s legal position, leaving her without any legal status for the child and arguably not in her or the surrogate-born child’s best interests longer term.

Assessment of different ways of resolving the legal issues surrounding surrogacy issues, to include the possibility of pre-birth orders may also be useful. Commissioning parents crave greater certainty because surrogacy contracts are unenforceable under English law and because the surrogate parents currently have an absolute veto and can prevent the making of a parental order if they so chose. The removal of the non extendable six month deadline for application for a parental order should also be considered.

Practically speaking, it is no longer an option to leave the issue of surrogacy in abeyance. Surrogacy laws and practice need to be reviewed as a matter of urgency. The foreign surrogacy industry is booming and the foundations upon which English surrogacy law were made look set to bust at any moment.

More information from our website about international surrogacy law.