BBC Radio 4, Thursday 21 August 2014
Presented by Catrin Nye
Surrogacy has always posed serious legal and ethical questions of society, and will continue to do so for a while yet. In the UK surrogacy arrangements are not illegal if they are altruistic, but they are not legally enforceable and can lead to a complex process for both the surrogate and intended parents. Radio 4's The Report highlighted the challenges, featuring interviews with women who choose to become surrogates, and the couples who become parents as a result.
One of the main issues The Report raises is that of trust. Surrogacy itself is legal as per the Surrogacy Arrangements Act 1985, but this Act has not been updated since its introduction. The advertisement of and for surrogacy services is illegal and so is brokering a surrogacy arrangement for commercial purposes; however surrogacy agencies have operated outside of this by providing networking opportunities to surrogates and intended parents. Commercial surrogacy arrangements are also prohibited; intended parents may only pay reasonable 'expenses' which are estimated to range from £12,000 - £15,000, anything over this threshold may have implications for subsequent parental orders.
So with no contractual protections available, the relationship between surrogates and intended parents is based on trust. A surrogate mother is under no legal obligation to give up the child at the end of the pregnancy. Likewise, the intended parents may not wish to take parental care of the child.
In the case of Amanda Benson - interviewed on this programme - the intended parents asked for an abortion when it became apparent that the child had Down's syndrome. In relation to disability, the 'Baby Gammy' case in Thailand came to international attention during August, although it is surrounded with its own controversy (see comment in BioNews 766).
In Tammy Morris' case, after she and her partner had no success in becoming pregnant, a local woman offered to become a surrogate. Having borrowed £1,000 for initial tests, the woman asked for more money for further medical tests. After a further £200 the woman told Tammy that she had cancer. She then left their lives completely, no help was offered by the police as there was no legally-binding agreement in place.
In the cases of Amanda and Tammy, the more harrowing aspects of trust in surrogacy are highlighted. The need for legally-binding contracts, clearly outlining each party's position, is ever more necessary as surrogacy grows in popularity.
Bobby and Nikki Bains, who have had two children using surrogates in India, tell of their experiences with that country’s tighter regulations and legally-binding contracts. The commercialisation of surrogacy in India is well established, with surrogates only allowed to carry out two surrogate pregnancies, and never allowed to use an egg of their own - meaning all pregnancies are of children that the surrogate will not be genetically related to.
Ultimately, legally-binding contracts not only give peace of mind to intended parents, ensuring their child will be handed over at the end of the pregnancy, but also the surrogate mother, who knows that any unwanted child cannot be left with her.
In India, though, the surrogate mother is often purely financially motivated. The going rate of £5,000 is a considerable sum to receive, but agents can receive more than double that amount, leaving questions of exploitation wide open.
Back in the UK, for intended parents finding a surrogate can be tricky. Because of this many agencies, such as 'Children Overcome Through Surrogacy' or COTS, as they are better known, provide networking opportunities for would-be surrogates and intended parents.
Surrogacy agencies are not regulated by the HFEA. Carol O'Reilly, who now works with COTS, having been a surrogate herself, explained that COTS cannot legally request background checks on anyone who comes into their orbit as they are not dealing with vulnerable children or adults.
Yet the cost to join a surrogate agency can be high. Reproduction is an important part of life, and for people's health and wellbeing; it all begs the question, why is there no move toward NHS surrogacy while we long ago accepted the idea of the NHS covering IVF treatment?
A move towards regulated, commercialised surrogacy in the UK is probably a long way off, though. The Report features a Department of Health statement that regulation of surrogacy is not currently on the table.
This programme bears witness to an area of law that just hasn't moved with the times.
This review is for a repeat transmission of The Report, for another review of the same programme go here.