Last month, in a judgment that was hailed as the first of its kind, High Court judge Ms Justice Russell ordered a mother to hand over her child to a gay couple (H v S (Surrogacy Agreement), see BioNews 801).
The facts of the case were that S, the mother, agreed to be artificially inseminated with H's sperm in circumstances that she claims H was acting as her sperm donor. However, H disputed this, submitting that S was in fact acting as a surrogate for him and his partner, B.
Ms Justice Russell ultimately ruled in favour of the two men after having considered evidence which showed that the mother had agreed to be a surrogate before conceiving the child, deciding that in the circumstances of the case it was in the child's best interests to grow up with her father and his partner.
She preceded her judgment with the following illuminating remarks:
'Very sadly this case is another example of how "agreements" between potential parents reached privately to conceive children to build a family go wrong and cause great distress to the biological parents and their spouses or partners. The conclusions this court has made about the agreement between the parties which led to the conception and birth of this child will inform the basis of future decisions the court has to make about the arrangements for the child. The lack of a properly supported and regulated framework for arrangements of this kind has, inevitably, led to an increase in these cases before the Family Court.'
The inadequacy of current UK surrogacy legislation is likely to face further judicial attack. With same-sex marriage being legalised in the UK in 2013, and a reported one in seven heterosexual couples having difficulties in conceiving naturally, surrogacy is an option that many couples are increasingly turning to in order to have a genetically related child. Indeed, it is estimated that there are now 1000 to 2000 UK children being born to surrogates each year, up from 50 to 100 in 2008. With this clear, rising demand for surrogates, a more robust framework for entering into and then enforcing surrogacy agreements is sorely needed to avoid the oft unnecessary, acrimonious litigation that is increasingly arising at the start of these children's lives.
One of the main problems of current UK surrogacy legislation is that it does not recognise surrogacy agreements as enforceable. There are three main criticisms with this state of affairs. First, in the absence of such agreements, parties are less likely to plan for the difficult issues that can arise in the surrogacy process, making reactive litigation when such issues do arise inevitable. Second, the uncertainties that shroud where the parties stand in the altruistic surrogacy process (what rights do they have?) is enough to compel some parents towards the certainty that commercial arrangements in the international arena ostensibly bring. This makes the potential exploitation of the surrogates involved in those unregulated marketplaces much more likely. Third, the current position has little regard for the autonomy of the parties involved.
Failing to expect the unexpected
One of the apprehensions often expressed by surrogates and commissioning parents is how some of the difficult issues that may arise during the pregnancy process might be resolved in the absence of an enforceable written agreement, and the fact that such agreements are unenforceable may even encourage some to shirk those issues altogether. What would happen, for example, if it were to be discovered that the child, still in utero, had a debilitating illness such that one of the parties felt an abortion was necessary while the other was opposed to this? The tragic and widely reported case of surrogate-born Baby Gammy - who was left behind with his Thai surrogate by his commissioning, Australian parents after they learned that he had Down's syndrome - highlights this issue (see BioNews 765).
Outsourcing possible exploitation
Aside from the problem of there being a relatively short supply of willing surrogates in the UK, many intended parents are uncomfortable with the fact that, if they were to use a UK surrogate legally, they would have to depend almost entirely on the altruism of willing strangers. While there is a murky debate over how much money can legitimately be given to a surrogate mother to cover her 'reasonable expenses', some would rather treat the arrangement as a 'neat' transaction and pay the surrogate for the invaluable service she is providing. Consequently, many intended parents choose to go abroad where commercial surrogacy arrangements are legal.
Rather than preventing surrogate exploitation - which the ban on commercial surrogacy in the UK seeks to achieve - the UK's failure to allow enforceable commercial surrogacy agreements at home has merely outsourced the problem to other countries. It is said that the UK accounts for over 1000 births from such transactions in India each year alone, something that the UK government is fully aware of but appears to be doing little about. Alternatively, by having clear, enforceable agreements, and measured guidelines as to levels of acceptable payments, the risks of international exploitation could be more effectively minimised.
A final criticism levied at the status quo in the UK is that it undermines the autonomy of those involved in the surrogacy process because legal parental status is automatically attached to the surrogate. Commissioning parents may only obtain a parental order in prescribed circumstances, and only after six weeks (and no more than six months) after the child is born. The majority of those who agree to be surrogates, however, are fully aware and accepting of the fact that they will not act as the child's parent once they are born, either to begin with or at all.
Dr Kirsty Horsey, an academic at the University of Kent, has pointed out that the current law is rooted in the 'presumption of motherhood', which is perhaps now no more than a facet of our 'cultural imagination', given the ever-changing concept of the family in modern society. Importantly, Horsey points out that surrogacy legislation is inconsistent with how the law treats parental status in other pre-conception practices - those who donate gametes, for example, are not automatically presumed to be parents in the eyes of the law.
By giving weight to the 'pre-conception intentions' of who is to be the child's legal parent, UK recognition of enforceable surrogacy agreements would better respect the autonomy and clear wishes of the parties involved.
Enforceable surrogacy arrangements
In the US, where in some states surrogacy arrangements are enforceable, parties must undergo psychological screening and obtain extensive legal and medical advice before entering into a more binding surrogacy agreement. Those who undertake this process are steadfastly clear in their motivations for doing so, and fewer problems arise as a result. By contrast, in H v S, the parties informally agreed over a series of emails to enter into the surrogacy agreement, and the procedure itself took place in S's home.
H v S merely highlights the inadequacy of UK surrogacy legislation. While a court's enforcement of a surrogacy arrangement must always take into account the child's best interests, legal recognition of such arrangements would bring greater certainty to parties embarking on the surrogacy process.