D and L (surrogacy) 2012 (1, and reported in BioNews 676) is the first ever UK case to award parenthood to the intended parents without the consent of their surrogate mother. Extensive efforts to find the unmarried surrogate mother, who had disappeared in India, failed, and this gave Mr Justice Baker the power to make a parental order without her consent. However, had the surrogate (or her husband, had she had one) refused to give consent, the outcome would have been very different. Surrogacy law in the UK makes the woman who gives birth and her husband or civil partner the legal parents of the child. This is irrespective of genetic parenthood or where in the world they live.
The intended parents may apply to the family court for a parental order within the six months after the birth, and the birth parents then give up their status. The birth parents must give full, free and unconditional consent, and this cannot be given before six weeks after the birth. The only limited exception is where the surrogate cannot be found or is incapable of giving consent.
If consent is refused, this means that a parental order is quite simply not available to the intended parents, even if they are the biological parents and caring for the child. They can apply for a residence order instead (adoption is not, as is commonly believed, an easy alternative), but this only gives limited decision-making rights during childhood and does not fully reassign parentage.
I have heard High Court judges criticise the 'absolute veto' that applies to parental orders, and express concern about the fact that, even if the surrogate or her husband or civil partner refuse consent for malicious reasons such as blackmail or extortion, the court does not have the flexibility to make an order which is clearly in the child's best interests. The position is unique in UK family law, with surrogate mothers given an unchallengeable position beyond even that of birth mothers of children being adopted.
So why is the law so inflexible?
The consent requirements were created in 1990 at a time when surrogacy was still in its infancy, and it was assumed that frequently birth mothers would bond with the baby and refuse to hand the child over. The law sought to discourage surrogacy, to make it a perilous undertaking that few would brave.
But with more experience behind us, we now know that surrogacy is not something to be quite so afraid of. The fear that many surrogacy situations would end in custody disputes has not been realised. Over the past 20 years, we have seen nearly 1,000 parental orders granted in the UK, with only two reported cases of the surrogate seeking to keep the baby. In one, the court gave residence to the intended parents (2); in the other, the surrogate mother (3) - both decisions were made on a best interests basis given the particular facts. As someone who has dealt professionally with surrogacy for many years, my experience is that surrogacy arrangements go wrong incredibly rarely.
I understand why people would assume that surrogacy arrangements are likely to end in problems. The process of pregnancy and birth for the vast majority of us is one of bonding with our own child, and that is a profound and significant experience. But what is easy to miss is that most surrogate mothers have a very different perspective.
I have heard an experienced surrogate mother asked how she dealt with handover at birth: wasn't it a difficult, emotional process? 'No', she explained, 'it's not difficult at all, it's the best bit - I see the parents, who are now my friends, turn into jelly in front of me because I have helped them go from being a childless couple to being a family'. There is something a little condescending, even Victorian, about the law's presumption that a woman cannot make an informed rational decision to carry a child for someone else, and to bear the consequences of that decision.
The world of surrogacy has also changed significantly over the past 20 years. The growth of IVF has meant that more surrogacy arrangements are now gestational rather than traditional. I do not wish to give a view as to whether a lack of biological connection makes it less likely that the surrogate will change her mind, or as to whether we would have a different perspective on the position if she did, but they are factors to consider. We also now have more British parents entering into international surrogacy arrangements in jurisdictions where the surrogate is not regarded as the legal mother. Surrogates are often surprised (and worried) to find out that they have legal responsibilities in the UK.
And let's not forget that the imbalance of the law is to the detriment of surrogates too, and their husbands (and now civil partners as well), who are burdened with all the responsibilities of legal parenthood for a child they do not consider theirs. Surrogates worry about being left, quite literally, holding the baby. The current law also lets surrogates down by failing to hold commissioning parents in any way responsible for the life they have created.
Yes, we must honour and respect the crucial and emotionally significant role a surrogate mother plays in carrying and giving birth to a child, whether she is based in the UK or abroad. The point is that, amid an almost hysterical desire to ensure her protection, we have got the wider balance wrong.
The law at present gives one side in a surrogacy arrangement a unique and special legal status which overrides the interests of everyone else involved, utterly irrespective of the circumstances. Where the surrogacy arrangement runs according to plan, this works to everyone's detriment, leaving the parents without any parental responsibilities, the surrogate with responsibilities she does not want, and the child in limbo for far too long. Where things go wrong - which fortunately happens very rarely - the courts' hands are tied; they can assign care flexibly, but not parenthood, and this has serious long term implications for the child.
It is time for us to take a more sophisticated approach to surrogacy, one which accepts that surrogacy arrangements are far more likely to have happy outcomes than problematic ones; an approach which recognises, alongside the surrogate's status, the rights and responsibilities of the biological parents who entered into the arrangement. Most importantly, we need to ensure the welfare of the child.