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Surrogacy: A Guide to the Current Law (Part 2) - Issues Arising

In the second of two articles providing an introduction to surrogacy law, Bianca Jackson, a pupil barrister at Coram Chambers, considers the main issues arising from the current legislation.


Bianca Jackson, pupil barrister, Coram Chambers












Bianca Jackson, pupil barrister, Coram Chambers

Introduction

As evident from the first article in this series, surrogacy law in the United Kingdom is predominantly governed by the Surrogacy Arrangements Act 1985 ("SAA 1985"), together with the Human Fertilisation and Embryology Act 1990 ("HFEA 1990"), the Human Fertilisation and Embryology Act 2008 ("HFEA 2008"), the Human Fertilisation and Embryology (Parental Orders) Regulations 2010 ("HFER 2010"), and Part 13 of the Family Procedure Rules 2010 ("FPR 2010"). But rather than providing a comprehensive approach to surrogacy arrangements, the law is confusing, complex, and poorly adapted to meet the needs of modern families. This has resulted in a number of contentious issues, particularly in relation to enforcing surrogacy arrangements and acquiring a parental order. Whilst the first article examined the key statutes and regulations, providing a brief introduction to surrogacy law in the UK, this article highlights some of the most common problems and gaps in the current legislation.

Commercial Surrogacy Arrangements

By far the most litigious aspect of surrogacy law is the prohibition of commercial surrogacy arrangements pursuant to s.2(1) of the SAA 1985. The provision has not deterred commissioning couples and surrogate mothers from entering into commercial agreements, especially since it is significantly easier to locate a surrogate mother in regions where payment is authorised. As such, the court has been compelled to balance Parliamentary intention (as encapsulated in the statute) against the welfare of the child.

The issues:

Key cases: 

Cross-border Surrogacy Arrangements

The growth in surrogacy generally has been concomitant with an increase in international surrogacy, or "reproductive tourism". The General Register Office of England and Wales notes that in approximately 26% of the 939 parental orders made between January and October of 2011 (i.e. 133 births) the births took place overseas, contrasting with 13% in 2010, 4% in 2009, 2% in 2008 and 0% in 1995, the first year of registration.* This increasing globalisation of surrogacy has resulted in a myriad of domestic problems, whether a child is brought into the UK or taken abroad.

1. Bringing Children into the United Kingdom:
The issues:

Key cases: 

2. Taking Children Out of the United Kingdom
The issues:

Key cases: 

Consent

The written consent of the surrogate mother and her husband or partner (if any) is the linchpin of a parental order, particularly since surrogacy arrangements are unenforceable (see the next section). This stipulation acts as a protective measure, ensuring that the legal parents are not extinguishing their parental status under duress or without sufficient understanding of the surrogacy arrangement. However, the specific requirements under UK law of when and how consent must be given have caused difficulties for commissioning parents. These can broadly be divided into two categories:

1. Locating The Legal Parents
The issues:

Key cases: 

2. Consent to the Parental Order (Correct Forms)
The issues:

Key case: 

Re C (A Child) [2013] EWHC 2413 (Fam).

Enforceability

Related to the question of consent is enforceability. Until the consent of the surrogate mother and her husband or partner (if any) is enshrined in a parental order, the surrogacy agreement is an informal arrangement. Although there have only been two reported cases of surrogacy arrangements breaking down in the UK, one of the driving reasons for commissioning parents seeking surrogates abroad is the guarantee of clear and contractual rights.

The issues:

Key cases: 

Single Commissioning Parents

According to the 2011 General Lifestyle Survey Overview from the Office for National Statistics, the number of single parents has tripled over the past forty years. In 1971, a lone parent headed just eight per cent of households, whereas by 2011 that figure reached 22 per cent. Whilst some single-parent households are the result of circumstance, others embody a conscious choice of a parent to raise a child on his or her own. But although single parents are permitted to adopt children or, in the case of single women, undergo IVF, their options with regards to surrogacy are limited by the HFEA 2008.

The issues:

Key cases: 

Conclusion

The present legislation governing surrogacy in the United Kingdom has engendered various issues for surrogate mothers, commissioning parents, and the resultant children, as well as third party brokers. The court has tackled these problems with a number of creative solutions in order to safeguard the welfare of the child. However, the difficulties remain. Almost thirty years since the introduction of the Surrogacy Arrangements Act 1985, it is time to ask what the function of surrogacy law in the United Kingdom is and what it should be. Should it be a preventative instrument to discourage certain people from engaging in surrogacy arrangements? A normative instrument, trying to shape families in the way certain segments of society would like them to be, rather than the way they actually are? Or should the law function as a regulatory instrument, protecting the interests of all of the parties involved? Until Parliament revisits surrogacy law, it remains out of step with the reality of reproductive practices in twenty-first century.
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* Marilyn Cranshaw, Eric Blyth and Olga van den Akker, 'The changing profile of surrogacy in the UK– Implications for national and international policy and practice' (September 2012) 34.3 Journal of Social Welfare and Family Law 273.

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