Surrogacy and the calls for reform

Family Law|November 1st 2016

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

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  1. mary says:

    Surrogacy is the only way for a lot of people to become parents. Society is changing and we need clear laws that bring up to date this process and protect all the parties.

  2. Lauren Kendal says:

    Most people don’t encourage surrogate motherhood. But in spite of this fact one can see that assisted methods of reproduction have been rapidly developing. We found surrogacy the better option than the adoption. We had to wait about six years to adopt a child in our country. Sometimes this process takes more. Maybe in some cases adoption can be alternative. But it is not always a way out. There are a lot of problems appearing with the adoption. I have nothing against it but it is really very difficult. Meanwhile it is pleasure to raise a baby since the birth. And that child would not be genetically connected neither my husband nor me. That’s why we arrived at the decision to do surrogacy. We chose, in Ukraine, one of the leading clinics in assisted technologies of human reproduction. I am inclined to believe that adoption is a very noble thing. But adoption can take even five to six years. And we would like to have a baby.

  3. Alexis Alsopp says:

    There is some truth in this article. No one can say for sure that somewhere the medicine is good, somewhere is bad. But I consider myself lucky that I made up the mind to such step as IVF in Ukraine. First, I was going to do the procedure in Georgia where I live. But the doctor who consulted me, told, that the eggs here are of quite low quality. So the chance of my pregnancy after the procedure is low. And in my case, I`m single pressed for many woman it is the best variant. With my friend we flew to Ukraine. The quality of Ukrainian cells is much better than the ones from other countries. Quite fast they found a donor for me and did all the necessary procedures. I spent there just a few weeks and all this time they watched over my health. I became pregnant from the second attempt. The thing which surprises me most of all, I spent less money, than my acquaintance, who did fertilization in my country. I think it`s wrong to say that the IVF service here is not so good. Then i made all the documents and left to my country without problems.

  4. Nancy Hoggarth says:

    I’ve seen a number of debates online in which people draw a really black and white line between people who want kids and people who don’t. In reality I don’t believe for many people that things are that clear cut. People don’t have kids for all kinds of reasons. Personally, we tried, had a number of problems. And it was too painful to carry on. But we fight for it. And we gained it. We use ivf procedure in Ukrainian clinic. They offered all kind of guarantees which can’t be offered by any European clinic or any clinic of United States. They do all kind of tests that are done during pregnancy. We sign a contract. Paid ones fixed sum. Clinic eve returns money in case of 5 failure attempts. So there are enough guarantees. We left country as a happy family. We couldn’t ask for more.

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