16 September 2013
Surrogacy law and policy differs considerably between countries. Some jurisdictions ban or restrict the practice of surrogacy, whilst others have no legal regulation and some permit it on a commercial basis. Around the world, some jurisdictions continue to test and develop surrogacy law and policy and two recent surrogacy disputes have emerged from Wisconsin, in the United States, and South Africa which highlight the challenging legal and practical issues surrogacy can create.
There are relatively few surrogacy disputes that reach the courts in the UK or elsewhere in the world. There is no surrogacy legislation in Wisconsin and no existing case law on disputed surrogacy arrangements, making the recent case of In Re the Paternity of F.T.R a legal first in the State. Notably, the Wisconsin case was based on a 'straight' surrogacy arrangement, where the surrogate is inseminated with the intended father's sperm, which is less common than gestational surrogacy, where the surrogate is not biologically related to the child.
Mrs Rosecky was unable to conceive her own biological child or carry a pregnancy owing to cancer treatment. Together with her husband she entered into surrogacy arrangement with her longstanding childhood friend, Mrs Schissel (a mother of five), who conceived artificially using her own egg and Mr Rosecky's sperm. It was agreed that the Roseckys would assume physical and legal care of the child at birth and that the Schissels would consent to the making of an order transferring parentage.
However, during the pregnancy there was a falling out between Mrs Rosecky and Mrs Schissel and Mrs Schissel announced her intention to renege on the agreement. Legal proceedings ensued, which culminated in the Wisconsin Supreme Court considering whether the couples' written agreement was enforceable in the case of a straight surrogacy arrangement. The Court ruled that straight surrogacy agreements are enforceable, provided enforcement of the contract is believed to be in the child's best interests.
However, the Court stopped short of perfecting the agreement, concluding that those provisions requiring Mrs Schissel to give up her parental rights could not be enforced. Mrs Schissel therefore retains legal motherhood for the child.
On the one hand this case is considered to have had the right outcome, recognising that the Roseckys should care for the child. On the other hand, the decision has left the child in a legally confused position because it has left Mrs Schissel (the birth mother) and Mr Rosecky (the intended father) with legal parenthood. As such, the case stores up a potential future legacy of complicated legal and identity issues for the Roseckys' child.
Meanwhile, the High Court of Pretoria has recently been considering a legal challenge to South Africa's existing surrogacy legislation. Having undergone several rounds of unsuccessful IVF treatment, the applicant woman and her husband divorced. Still wishing to become a mother, the woman identified a surrogate willing to carry a pregnancy using a donor embryo (comprising donor eggs and sperm).
Presently, South African surrogacy law, as in the UK, stipulates that the surrogate-born child is conceived with the gametes of at least one of the intended parents. As the woman is single and has no genetic link to the child, she is unable to undertake surrogacy in South Africa. Submitting a 50-page affidavit to the Court, the woman released a statement saying that 'the genetic link requirement infringes on the constitutional rights of prospective commissioning parents and single infertile people'. The South African Department of Social Development has indicated that it will oppose the application.
The Wisconsin case has resulted in an imperfect solution to a surrogacy dispute. It raises important questions for the UK, where surrogacy agreements are contractually unenforceable and where the consent of a surrogate is required before a parental order can be made (the legal solution for surrogacy in the UK).
The South African case concerns the appropriateness of using donor embryos in surrogacy, which will have to be addressed as the proceedings develop. In circumstances where existing South African surrogacy legislation requires a genetic link between intended parents and the surrogate child, like that of the UK, this case also represents one to watch.
These two cases demonstrate that surrogacy law continues to evolve differently around the world. Legal issues arising from surrogacy continue to be dealt with on an ad hoc basis by the courts. To ensure greater protection for surrogate-born children, intended parents and surrogates, law and policy makers must have a better appreciation of the unique nature of surrogacy and revisit existing legal frameworks.