I have written here many times of how the law reflects society, and must respond to changes in society. That is why the great divorce reforms of the 1960s happened, the law catching up with the reality of how people were living their lives and how they wanted to live their lives.
Sometimes, of course, the law can be slow to catch up, and may even be ‘caught out’ by rapid changes, for example in response to some new technology or scientific breakthrough. One area where many think the law needs to do some catching up is in relation to surrogacy.
I don’t know the figures for the number of surrogacy arrangements in which UK couples are involved (or even if there are any such figures), but reading the law reports does suggest that these arrangements are becoming a lot more popular. As a result, the law is being tested more than ever, and sometimes it is found to be wanting.
Take, for example, the case Re AB (Surrogacy: Consent), the judgment for which was handed down by Mrs Justice Theis DBE in the High Court last week.
The case concerned a surrogacy arrangement entered into in this country, as a result of which twins were born in 2015. The arrangement was between the biological parents of the twins and the surrogate mother and her husband. The twins have lived with their biological parents since the day after they were born.
All well and good, but because the twins were born to the surrogate mother she and her husband are legally their parents. This, of course, can be ‘rectified’ by the making of a parental order in favour of the biological parents. However, under the law as it stands at present such an order can only be made with the consent of the legal mother and father.
Now, as the surrogate mother and her husband wish to take no part in the children’s lives one would expect that there would be no problem with them giving their consent. Unfortunately, however, a dispute arose between the biological parents and the surrogate ‘parents’, after the surrogate mother had a 12 week scan, at which the consultant obstetrician expressed very real concerns about the health of the surrogate mother if the pregnancy continued. Obviously the pregnancy did continue, but the surrogate mother felt that the biological parents did not show sufficient concern for her wellbeing during this period. Aggrieved by this, the surrogate ‘parents’ are refusing to consent to the making of parental orders.
So, as Mrs Justice Theis said, the biological parents’ applications for parental orders have come to a ‘juddering halt’. As a result, the children have been left in a ‘legal limbo’, in which the surrogate ‘parents’ remain their legal parents, even though they are not biologically related to them and expressly wish to play no part in their lives.
The upshot is that the court has adjourned the applications at the request of the biological parents, who hope that the surrogate ‘parents’ change their mind. For the sake of the children, let us all hope that they do.
I think it is fairly clear that the law in its present form has failed these children. I’m not sure exactly how it might be changed, but the ultimate aim of the law must surely be to secure the welfare of the children, and that has not happened here.
As I said above, many people are calling for the law on surrogacy to be reformed and brought ‘up to date’. Only this weekend a national newspaper ran a story about NHS hospitals forcing surrogates to hand over new-born babies to parents in car parks, for fear they may fall foul of “dire” and “outdated” surrogacy laws. In her judgment Mrs Justice Theis pointed out that the Law Commission has recently announced that surrogacy may be included in their next programme of law reform. Let us hope that it is, and that those involved in surrogacy arrangements, in particular of course the children, are in the near future properly served by surrogacy laws that are fit for their modern purpose.
You can read the judgment in Re AB here.
Image by Pat Guiney via Flickr under a Creative Commons licence