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Surrogacy: Perspectives from a commercial model

6 May 2014
By Andrew Powell
Barrister, 4 Paper Buildings
Appeared in BioNews 752

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 [2014] 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?

22 February 2021 - by Michaela Chen 
New York's new surrogacy law has come into effect, ending a ban on commercial surrogacy in the state.
15 June 2015 - by Dr Kirsty Horsey 
A working group from Surrogacy UK has devised an online survey seeking views on people's experiences of surrogacy in the UK and opinions on the way it is regulated...
8 September 2014 - by Chee Hoe Low 
BBC Radio 4 's 'The Report' ventured into the ethically controversial area of surrogacy, which made international media headlines following the recent baby Gammy controversy...
18 August 2014 - by Dr Rosie Morley 
'Money can't buy you love but it can certainly buy you parenthood'. Or can it? Should it? And if it should, where and how should it be regulated?...
28 July 2014 - by Alice Plein 
‘Breeders- A subclass of women?‘ provides both thought-provoking and uncomfortable moments but ultimately fails to convince as an anti-surrogacy polemic...
17 March 2014 - by Louisa Ghevaert 
A recent case made national headlines for being a 'do it yourself' surrogacy arrangement which ended in marital breakdown and legal chaos, but news reports did not fully address the complex issues raised in the case about the identity and best interests of the child...
10 March 2014 - by Patricia Cassidy 
A 'do it yourself' surrogacy agreement resulted in legal chaos after the intended parents' relationship broke down within a few months of the baby's birth, leaving the intended mother with no parental rights over the child...
5 August 2013 - by Susan Imrie and Vasanti Jadva 
The Human Fertilisation and Embryology Authority intends to update its guidance on surrogacy for clinics, and while we welcome this clarification, it is also important to consider how surrogates feel the law shapes their experiences...
11 March 2013 - by Emma Stoye 
A surrogate mother in the United States, who refused an abortion at the intended parents' request after a scan revealed abnormalities, has told CNN news that she was offered money to terminate the fetus and was threatened with legal action....
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