Daybreak featured an interesting story this morning about a man who aims to be the first single male surrogate parent in Britain. He was vehemently opposed by a woman sitting next to him, who thought it was wrong and selfish of him. There was no legal angle, because although ITV had very kindly arranged for me to appear from the Leeds studio, there was a technical glitch and so I was unable to give my “two pennorth’s worth”, as we say in Yorkshire.
It was a pity because all weekend I’ve been wondering: how far should the law go to create designer parents for designer babies?
Surrogacy is a thriving, multi-billion dollar industry outside the UK because there is a huge demand from thousands of couples who are desperate for a child and who can’t conceive naturally as a couple. But unlike adoption, there is no agreed international regulation and so in some countries it is legal and a thriving business for all those involved, and in others it is completely forbidden and illegal. Surrogacy has its vocal supporters and its opponents are equally as vocal, as was clear on TV today.
When a surrogate child is born in India, California and Uganda, the surrogate mother has no automatic right to her child and the child is removed at birth and handed over to the commissioning parents. Any surrogate who wishes to keep the child will be overruled. In the Ukraine, the surrogate mother has no rights at all.
In some countries, the commissioning parents’ names will automatically appear as the parents on the birth certificate. A surrogate commission by a single male parent may also possible. I have also read of a case where the birth certificate simply showed the father’s name, The surrogate mother is paid a commercial rate for the pregnancy. She will be paid more in some countries than in others for her services. She might be the biological mother of the child, or the “gestational” mother, who merely rents out her womb – either way it doesn’t matter, because for her in her country, this is simply a business, and once the baby is produced, her role is ended. She will most likely never see the child again.
There are also countries where surrogacy is regarded as abhorrent, immoral and strictly forbidden. These include China, France and Germany. There are some states in the USA, too, where it is illegal, such as New York and New Jersey. And in a country we might consider more liberal – the Netherlands- entering into a surrogacy arrangement is illegal and an imprisonable offence – although surrogacy itself is not illegal.
Other countries, such as the UK, are more neutral. Surrogacy is permitted but within strictly defined parameters and must not be for profit. The Surrogacy Arrangements Act 1985 prohibits the payment of a fee other than the reimbursement of expenses, although this has been interpreted generously. Advertising for a surrogate, or advertising your services as a surrogate parent is forbidden. There are strict penalties for third parties who may become involved.
So, if you are considering surrogacy, as a potential means of having a baby, I don’t envy you. Surrogacy is fraught with tension, anxiety, expense and even the danger that it all may come to naught nine months later.
You pays your money and your takes your choice, because although surrogacy is legal and easier to obtain in some countries, and also cheaper in some than in others, there will be pitfalls to negotiate, such as obtaining a legally recognised parental order, a passport along with permission for the baby to leave the country and entry clearance to the country where the new parents intend to live. And then, of course, there are all the natural concerns about the health of the surrogate; whether the conception really has involved the gametes of one or both of you; concerns about the health of the baby during the pregnancy and the health of the baby after birth. All of these concerns are beyond your control.
And what about the law in England and Wales? If, six weeks after the birth, the surrogate mother refuses to hand over the child or refuses to consent to a parental order which will remove her as the legal parent of the child – or even if she consents but her husband refuses as he is considered the legal father up to that point – it may all become impossible.
Obtaining a parental order resulting from a surrogacy, which legally replaces the surrogate as parent, is governed by section 54 of the Human Fertilisation and Embryology Act 2008 (HFEA), which came into force in April 2009.
It is considered in tandem with Part 13 of the Family Procedure Rules 2010, which sets out the legal procedures for making an application to the court for a parental order. The process is fiddly – even assuming the commissioning couple are eligible to apply for a parental order. We have looked at those requirements and the procedure, in previous posts.
But the first problem that any single male commissioning parent would have is just that: he is single and under section 54 of the HFEA, he can’t apply for a parental order because only married couples, couples in a civil partnership or an enduring cohabitation may apply at all.
In one case (Re A and Another v P and Others (2011)EWHC 1738),there had been a parental order issued to one parent when the other had died – but the death occurred after the application was made and before the final hearing.
So can men become only legal parents of a child?
In law, following the birth the surrogate is considered the legal mother of the child, whether she is the biological mother or gestational mother or both.
As the biological father of the child, the man is also considered to be the legal father. Being unmarried to the surrogate, he doesn’t automatically have parental responsibility for the child, but this can be cured by signing the child’s birth certificate. He could also obtain a residence order (preferably with the consent of the surrogate) and could under section 91 (14) of the Children Act 1989 obtain a ‘prohibited steps’ order requiring the surrogate to make no further applications to the court without permission of the court, in order to prevent any future contact by the surrogate with the child. If the surrogate changed her mind about relinquishing the child, however, as the mother it is likely she would succeed. At birth too, she could change her mind anyhow and keep the baby, and whatever decision the court makes, it is unlikely overall that the court would ever try to extinguish her relationship with the child, as that would not be in the best interests of the child.
The birth certificate would also of course, name the surrogate mother.
So is it possible to completely extinguish the legal relationship between the surrogate mother of the child so he is the only parent of the child? Yes. It is possible via adoption.
In making an adoption order, – and this also applies to the making of a parental order in surrogacy since 6April 2010, when the HFEA (Parental Orders) Regulations 2010 came into force – the court is required to consider the welfare of the child for the whole of its life.
So if an adoption application is made would it succeed?
The answer, as you might imagine, is far less clear and fact dependent. Such an application is possible if the other parent is dead or could not be found, or there was no other father under the HFEA legislation.
But the court could also make an order, if there was “some other reason justifying the child’s being adopted by the applicant alone”. In Re B (Adoption –Natural Parent)2001 UKHL 70, the mother had made it clear she had no wish to ever parent the child. At the original hearing, the late Mrs Justice Bracewell made the adoption order, which was reversed by the Court of Appeal. But in the House of Lords (now the Supreme Court) the original adoption order was upheld.
If the court does make such an order, however, it must be exceptional enough to justify the exclusion of a parent from the life of a child.
So are we not only creating designer babies but designer parents too?