Family Law: Surrogacy

Family: Surrogacy

-       Criminal offences: Surrogacy Arrangements Act 1985 s.2(1) – no person shall on a commercial basis take part in surrogacy negotiations, offer or agree to negotiate, or compile any information with a view to using it in negotiations.

To constitute an offence the arrangement must be made before the gestational mother becomes pregnant.

NB: the gestational and commissioning mother are not liable for the offence, only third parties making the arrangements.

It is also an offence to pay money that constitutes a reward or profit to the gestational mother under a surrogacy arrangement. Payment can cover expenses. Any payments can be authorised under s.30(7) HFEA 1990.

-       Enforcing a surrogacy arrangement: s.1A Surrogacy Arrangements Act 1985 says that no arrangement is enforceable.

Without this provision a surrogacy contract might be thought to be enforced in the same way as another contract.

In Briody v St Helens and Knowsley HA the court referred to the surrogacy arrangement as an ‘unenforceable and unlawful contract’.

-       What happens when the baby is born?

Option 1: Commissioning parents take no legal steps. Gestational mother (surrogate) would be the mother, and the biological father would be the father. If the legal status of the child’s parentage ever came to court, it’s likely that they’d order to maintain the status quo. In Re H a mother gave birth but did not want to care for the child. She handed the baby over to her friends, a lesbian couple –one had a history of mental illness whilst the other had a criminal conviction. The matter was brought before the court 9 months later, by which time the couple had bonded with the child. The court said that unless there was significant danger of harm, they would have to confirm present arrangements.

Option 2: Commissioning parents could apply for a parental order.

Option 3: Commissioning couple could apply for a residence order. Leave to make the application will be required unless the commissioning husband is the genetic father of the child. The courts’ paramount consideration will be the welfare of the child. Generally, unless the gestational mother opposes the application, it will be granted. Re P was an exceptional case where the surrogate mother had lied to the father and told him that she miscarried. He later found out the truth and applied for a residence order with his wife. Evidence of the surrogate mother’s psychological state meant that the child was better off with the commissioning parents, even though the child had bonded with the surrogate mother for 18 months.

Option 4: Commissioning parents may also apply for an adoption order where a parental order is not available. NB: the Adoption Act 1976 clearly forbids any ‘payment or reward’ in private adoption placements.

Option 5: Local authority may wish to investigate in order to decide whether to use any of its powers; e.g. care order.

-       Where gestational mother refuses to hand the child over – the commissioning parents could apply for a residence order. However, by the time the matter reaches the court it may well be that the child will have bonded with the gestational mother. This, in conjunction with the natural parent presumption, is likely to mean that the court will not grant the order and the child will stay with the gestational mother.

-       Confusing approach – the law’s response to surrogacy is ambiguous. Surrogacy itself is not illegal, but on the other hand surrogacy contracts are unenforceable.

ARGUMENTS FOR SURROGACY

-       A woman should be allowed to do with her body as she wishes

-       Some believe surrogacy is a more appropriate solution for infertile couples than many forms of assisted reproduction

-       Surrogacy is inevitable and therefore best regulated by law

-       Surrogacy encourages and enables a variety of family forms. It is especially good for gay couples

ARGUMENTS AGAINST SURROGACY

-       Surrogacy arrangements are contrary to the best interests of children. It is not desirable for a child to be born in circumstances that are so likely to result in a dispute between adults, which may well harm the child. A child may also be confused about his identity

-       Can be seen as demeaning to women as they are being used as ‘walking incubators’

-       Surrogacy does not challenge the attitude of society towards infertility and means resources are not directed towards discovering the causes of infertility

-       The Roman Catholic Church has argued that surrogacy is analogous to adultery, in that it brings a third party into the married

-       The child after birth might be rejected by both the gestational mother and the commissioning parents, particularly if the child is born disabled

-       Commercial surrogacy arrangements commodify children and treat them as chattels to be bought and sold.

Reform

In 1998 there was a review of surrogacy which led to proposals for a new code of practice aimed at controlling the payments of surrogate mothers and the regulation of surrogacy in the UK. These reforms perhaps happened following the publicity surrounding Karen Roche.

NB: some of the above content may have been taken from other sources