Last week BBC4 screened a documentary about a commercial surrogacy clinic in India (you can find it here, but unfortunately only until 10 October 13). It was compelling viewing, and fascinating both from the perspective of the surrogate Indian women, and from that of the couples paying to use the services of the clinic.
The scale of the operation was surprising. The pregnant Indian women are housed in a “House of Surrogates” for the duration of their pregnancy, together with around 100 other women in dormitories. The clinic charges overseas couples around £28,000 per baby of which the surrogate mothers get around £5,000, or more if they are carrying twins.
Surrogacy is legal in Britain, but is a criminal offence to pay a surrogate mother more than her ‘reasonable expenses’ incurred during the pregnancy, and it is also illegal to advertise that you are seeking a surrogate mother or willing to act as one, making it more difficult to find people prepared to do it. If a couple cannot find a willing surrogate in this country, they are forced to look abroad, and use the services of surrogacy agencies.
Commercial surrogacy raises a whole host of difficult ethical questions. The biggest providers of surrogacy services seem to be in India and Russia, although commercial surrogacy is also legal in California (from where singer Elton John and his partner David Furnish have recently had their second child). Some people see it as morally wrong, or at least exploitative of the women involved. Others view employing a woman to carry your child as no different to employing someone to clean your house or provide other domestic services.
It was certainly clear from the documentary that for many people surrogacy was often the end of a long road of trying to start a family, after medical reasons have ruled out a pregnancy and adoption has also been considered but is not appropriate for some reason. And although no gay couples were featured in the documentary (possibly because India bans gay couples and single parents from having children via Indian surrogates), for them surrogacy may provide a chance to have a child which is genetically related.
There are two kinds of surrogacy. The first, “partial surrogacy”, is where the surrogate mother uses the intended father’s semen to get pregnant with her own eggs through artificial insemination and thus the baby is biologically the surrogate’s. The other, “full surrogacy”, involves IVF and the planting of a fertilised embryo into the surrogate’s uterus, so the baby has no genetic relationship to the surrogate.
The law in England is complex in this area. Currently, English law views the surrogate mother as the child’s legal mother. If the surrogate is not married or in a civil partnership, or her husband/partner did not consent to the mother’s artificial insemination, the child’s biological father will be the commissioning father. However, if the surrogate mother has a husband or civil partner who consented to her artificial insemination, the child’s other parent will be the surrogate mother’s husband or civil partner and not the biological father. This applies whether the surrogacy happened here or abroad.
For an English couple whose child has been born with the help of a surrogate mother, a Parental Order must be obtained from the court. This provides legal recognition for the commissioning parents to the exclusion of everyone else, provides them with full Parental Responsibility for the child, and allows them to be named as parents on the birth certificate. Because payment for surrogacy services is illegal, the courts also have to examine closely what money has changed hands and how much of the payment is permissible in law. In reality judges are more concerned with the welfare of the babies at the centre of these applications, and usually retrospectively approve payments in order to regularise the position and make a Parental Order; but this cannot be guaranteed.
Until the Parental Order is obtained, the child can be in a sort of legal limbo. Different countries recognise different parties involved in the surrogacy as parents – so for example the commissioning couple may be seen as legal parents in the surrogate’s home country, but English law recognises only the surrogate and possibly her husband as legal parents. This potentially leaves the child legally parentless, and can be a particular problem if there is difficulty tracing the surrogate after the birth to clarify that the commissioning couple have her permission to bring up the baby.
Prior to the Parental Order, English law does not recognise the commissioning parents as parents, and so they do not have the power to make important decisions about the child, such as giving consent to medical treatment. That, again, can potentially be very difficult for everyone involved. The immigration status of the baby can also be very difficult to untangle.
As surrogacy becomes increasingly common and commercial surrogacy services more accessible, our law appears in need of urgent reform to ensure that children are protected from legal limbo. Further, currently our employment law does not give the same rights to parents with children born through surrogacy as given to other parents; and at present only couples are allowed to apply for a Parental Order, which rules single parents out of having a surrogate baby, despite single parents being allowed to adopt or conceive a baby through donor insemination.
We at CFLP believe that the law needs to be clarified, and better protection should be offered to all parties involved in surrogacy arrangements.
If you have any queries about surrogacy (a vast topic which we can hardly do justice to in a short blog) do give Adam, Gail, Sue or Simon a call on 01223 443333.