06 May 2014
I've always been interested in the law related to surrogacy. Through the Pegasus Scholarship Scheme founded by the Inner Temple, I obtained a placement at a law firm in Los Angeles that specialised in surrogacy and fertility law. I was keen to see how commercial surrogacy operates within a regulated paradigm. The California Family Code Sections 7960 enacted last year codified Californian surrogacy law. Among other things, the statute contains a number of safeguards to protect the parties to a surrogacy arrangement, such as requiring both parties to be represented by independent lawyers.
The law in relation to surrogacy in the UK is governed by the Surrogacy Arrangements Act 1985 and the Human Fertilisation and Embryology (HFE) Acts 1990 and 2008. A surrogacy arrangement in the UK is not illegal, but it is not enforceable. Commercial surrogacy however is unlawful: it is a criminal offence to make or negotiate a commercial surrogate agreement or to initiate or take part in any such negotiations.
Across the Atlantic, there is considerable variation in respect of surrogacy laws in America. The law in New York state for example, is almost identical to UK law; whilst California is regarded as the 'go-to' state for all things surrogacy related.
The surrogacy agency
Within a regulated paradigm, surrogacy agencies operate as a profitable intermediary between the intended parent(s) and the surrogate. The agency sifts through prospective surrogates as well as the intended parents. Once selected, the agency is responsible for matching intended parents with surrogates. There is an obvious benefit to this process: all surrogates undergo a rigorous screening process. The likelihood of issues post birth (e.g. the surrogate not wishing to handover the child at birth) is reduced significantly. The matching process may vary between agencies. However, in the ones I worked with the matching process was very much a two-way street: it was equally important that it was the 'right match' on both sides.
The scenario of a surrogate not wanting to relinquish custody of the new born to the intended parents from my observations and discussions with practitioners in this field in California are few and far between. The reality it seems is that when those situations do arise, they tend to arise where individuals have entered into informal arrangements, often, but not exclusively, with friends and without the assistance of legal advice.
The legal process
The most striking feature of the process in California is the availability of court orders which allow intended parents to acquire parental rights in utero. A pre birth order extinguishes the parental rights of the surrogate (and that of her husband if she is married) and recognises the intended parents as the unborn child's parents. For many, this process may seem quite taboo. However, in practice, the acquisition of parental rights for the intended parents pre-birth served to reinforce the concept that it was a commercial transaction and the unborn child didn't 'belong' to the surrogate.
This sounds quite crude; however the narrative that emerged from both sides was one of mutual appreciation. Each party knew where they stood within the arrangement. There was no ambiguity in terms of boundaries or what was expected of each party. The contractual process which the intended parents and the surrogate enter into formed a solid foundation of expectations and obligations.
The future in the UK
My observations of surrogacy in California were quite positive. I saw no evidence of exploitation; in all of the cases I saw the parties had freely and with the benefit of legal advice, entered into surrogacy arrangements.
It has however highlighted the lack of support that an unregulated system can engender. The recent case of JP v LP & Others  EWHC 595 (Fam) illustrates some of the legal complexities that can arise where no formal or regulated system exists. In that particular case, a married couple approached a friend to be artificially inseminated at home with the husband's sperm. At birth the surrogate and the husband were named on the child's birth certificate. The married couple subsequently separated and the wife found herself with no parental rights as she was not recognised as the child's legal or biological mother. Mrs Justice King described the case as highlighting the 'real dangers' which can arise where individuals enter partial or informal arrangements.
Of course, there is nothing to say that in a regulated system, such cases would not occur. However, there may be fewer cases in circumstances where individuals are able to go through recognised and regulated channels.
For the last three decades surrogacy and commercial surrogacy in particular, have been thorny issues to grapple with in the UK. The notion of commercial surrogacy being akin to 'baby buying' offends the social and moral conscience of many. However, in reality it is a practice which many UK couples engage in, by going to countries where commercial surrogacy is legal and inviting the UK courts to retrospectively authorise payments pursuant to section 54 of the HFE Act 2008. Perhaps it is time for there to be a review in to the current system?