Minds Underground’s “The Latest in Law” blog explores potential areas for reform and raises interesting interdisciplinary questions for aspiring law students to explore. In our latest, Sylvie looks at the law of surrogacy, a pressing labour law issue at the moment, currently under review by the Law Commission. Find out why the Law of Surrogacy presents a discrepancy between the law on paper and the law in practice, and some of the key areas of debate that arise.

About the author: Sylvie is a PhD candidate in Law at the European University Institute (Florence, Italy) , where she specialises in Labour Law research, exploring the regulatory framework of commercial surrogates. She holds a Master's and BA (Double First) from the University of Cambridge in Law, where she was awarded the John Hall Prize for Family Law, the Willoughby Prize for Contract & Commercial Law, the Rebecca Squire Scholarship and Pembroke College, Cambridge Academic Scholarship.

What is Surrogacy?

Surrogacy is the process whereby a woman agrees to carry a child for another person or couple, knowing that she will relinquish the baby to them at birth and they will be the parents. It is therefore a form of Assisted Reproductive Technology (ART), particularly popular with couples where the woman is infertile, and homosexual or single men. Whilst some surrogates carry children for women that simply do not want to be pregnant themselves, this is very unusual – and indeed not allowed in many jurisdictions. Though recorded instances can be found even in the Bible, it is only really since the 1970s that this has popularised, and become a source of discussion among lawyers, feminists, sociologists and many more. The practice has proved to be highly controversial, as the rest of this blog will briefly show.

Surrogacy arrangements can take different forms. The first distinction is between ‘traditional’ and ‘gestational’ surrogacy. In the former, the surrogate is related to the child that she gives to the intentional parents. She is artificially inseminated with the sperm of the intended father or a donor, but it is her egg. In gestational surrogacy however, which is now far more common, she is not related to the child. Rather, IVF is used to implant a pre-fertilised embryo into her womb. This means that often both intentional parents will be genetically related to the child, though sometimes donor gametes will be used. The second important distinction is between ‘commercial’ and ‘altruistic’ surrogacy. In the former, the surrogate is expressly paid for her role. In altruistic surrogacy, however, she is entitled to ‘reasonable expenses’ only. As such, though she can recover for costs such as lost wages and money spent on maternity clothes, she is not allowed to profit from her endeavour.

Surrogacy Law at the Moment

At present, surrogacy in the UK is governed by two primary pieces of legislation: the Surrogacy Arrangements Act 1985, and the Human Fertilisation and Embryology Act 2008. There are several key features of these that should be noted:

Commercial Surrogacy is Unlawful

Though it is legal to enter into a surrogacy arrangement in the UK, this cannot be for profit. The arrangement can be for ‘reasonable expenses’ only. It is also illegal for third parties to make money from these arrangements. As such, lawyers cannot be paid to draft a surrogacy contract for instance, nor can agencies and brokers operate for profit.

Surrogacy Contracts are Not Enforceable

Though prospective parents and surrogates will often have an express arrangement between themselves for the purposes of clarity and certainty, this is not a binding contract. Neither side can enforce the obligations against the other; both are reliant on the good faith of the other to ensure that it is smoothly executed.

For most parties entering into surrogacy arrangements, the biggest concern in this regard is therefore that the surrogate cannot be forced to relinquish the child at the end, nor are the intended parents legally obliged to assume legal responsibility for them. If the surrogate decides she wants to keep the child, the intended parents can however take her to court and challenge her for custody. It will be for the judge to determine where the child will be placed. This determination is made based on what it is felt are in the ‘best interests’ of the child. If the commissioning parents refuse to accept the child, the surrogate can either care for them herself or give them up for adoption.

The Surrogate is the Legal Mother at Birth

The existence of a surrogacy contract does not change the presumption of maternity in the United Kingdom: that the woman who gives birth is the legal mother of the child. As such, the surrogate is the legal mother of the child at birth and will be named on the birth certificate. If she is married, there is also a presumption of paternity in favour of her husband.

It is possible for legal parentage of the child to be transferred to the intended parents, however, through an application for a Parental Order. In order for this to be granted, they have to meet certain set requirements:

The conception must have taken place by embryo transfer or artificial insemination, and the child must have been carried by a surrogate
The intended parent (or if a couple at least one of them) must be the child's biological parent
If the intended parents are applying as a couple they must be married, civil partners or living together as partners in an enduring family relationship. Single parents can apply.
The intended parents must submit the application to the court within the six months after their child is born
At the date they apply and the date the order is made the child must have his or her home with the intended parent/s
At the date they apply and the date of the order, the intended parent (or if applying as a couple at least one of them) must be domiciled in a part of the United Kingdom, Channel Islands or Isle of Man
The intended parent/s must be over 18 when the order is made
The surrogate and her spouse must fully and freely consent to the order (unless they cannot be found or are incapable of giving consent). The surrogate cannot validly consent until the child is six weeks old
No more than reasonable expenses must have been paid, or the court must agree to 'authorise' the payments retrospectively.

Though it is not mandatory for the intended parents to apply for one of these, without it they do not have legal responsibility for the child. As such, they are not legally entitled to make major decisions regarding issues such as education or medical procedures. It is therefore largely recognised as important for these parents to regularise their status regarding the child. In practice, the main problems arise when one of the criteria is not met – for example as more than six months have passed or more than ‘reasonable expenses’ are to be paid. What should the court do? If they refuse the order, they disadvantage the child. Though the intended parents can continue to care for them in practice, they are in a legally vulnerable position. If they grant the order, however, they go against the will of Parliament – something courts do not really have the power to do. Largely, judges have preferred to take a flexible approach to requirements and grant Parental Orders regardless of whether they appear on their face to comply with the statutory elements. This discrepancy between the law on paper and the law in practice, however, is a key reason that there are so many advocates for reform. Surrogacy is therefore currently the subject of a Law Commission reform project, which is considering how it might be modernised and improved so as to better meet the needs of all the parties involved.

Key Areas of Debate

How the law of surrogacy ought to be reformed, however, is itself a highly contentious question. There is no real consensus, nationally or internationally, on what regulation should look like. Some of the main debates are as follows:

Should Surrogacy be Allowed At All?

One of the biggest debates is whether surrogacy should be allowed at all – or whether rather than being regulated it should simply be banned. Despite the problems with UK law, in reality it has one of the most progressive regimes in Europe. Most other countries, including France, Germany, and Italy, completely prohibit any form of surrogacy. They consider it to be contrary to public policy. Surrogate motherhood raises many complex ethical issues, which have been the subject of much debate by scholars. In summary, there is concern that it will do harm to the surrogate, the children involved, and society. There is fear that to allow a woman to use her body as a ‘means to an end’ will violate her intrinsic dignity as a person. Similarly, concerns arise that allowing such free relinquishment of children will cause them psychological harm, and possibly lead the surrogate’s existing children to believe that they will be given away too. Investigation into both of these issues provide little support for either, however fear of what allowing surrogacy might do to the integrity of the family means it nonetheless remains controversial.

Arguments in favour of surrogacy, however, are often framed in terms of liberty. If we value reproductive freedom and autonomy, it is argued, we ought to recognise surrogacy arrangements. Moreover, those who favour surrogacy see it as an important way for people who cannot conceive themselves to become parents. This is considered to be particularly important given the decline in healthy children available for adoption – though whether this avenue should be considered first remains an open debate. Many surrogates also say they enjoy being able to help bring the gift of a family to others; it is something meaningful and important to them which should not be taken away.

These debates continue and are highly controversial. The main problem with prohibition, however, has proved to be practical. We now live in a highly globalised world. A visible trend in recent years, therefore, is that intended parents who cannot access these services in their own country travel abroad and hire a surrogate elsewhere – particularly jurisdictions such as California, Ukraine and Panama. There are, however, no international rules governing surrogacy. As such, when they seek to return with their child, the court then faces the exact same problem as it does when the Parental Order requirements are not made out. Though if they recognise the intended parents as responsible for the child they completely undermine the prohibition of the state, by refusing to do so they leave the infant without legal parents. Depending on where they were born, they may even be left without a nationality if the state of the intended parents refuses to recognise them. As both of these are a violation of the fundamental rights of the child, the European Court of Human Rights has held several times that a state that does so violates its Convention obligations. This cross-border effect has led to increased recognition of the need to regulate this industry.

Should Surrogacy be Paid?

Though surrogacy of all forms can be controversial, commercial surrogacy tends to raise the most concerns. One major debate is whether it constitutes a form of ‘baby selling’, and therefore a violation of the international prohibition on the sale of people. Generally, it is now accepted that so long as the surrogate receives monthly instalments, rather than being paid only on the delivery of a healthy child, it is fair to characterise commercial surrogacy as a form of compensation for labour rather than sale of the child themselves.

Whether this ‘labour’ is one they ought to be paid for, however, is also open to question. For some, such ‘reproductive’ labour is too valuable for a price to be put on it. It is impossible to measure how much it is worth, and to try to do so would be corruptive. Wombs should not be ‘for rent’; there are simply some things that money simply should not be able to buy. Others have more practical concerns – that poor women with limited life opportunities will turn to surrogacy out of desperation. There is therefore a social responsibility to ensure that they are not exploited by richer people who may not care about their welfare or values.

Who is the Mother?

There are many other controversial aspects of surrogacy which could be mentioned here. A final difficult question to raise, however, is who the mother of the baby should be when it is born. Traditionally, it has always been the woman who gave birth. Pregnancy is considered by many to be a period of strong bonding, such that it is assumed that the surrogate should be treated as the legal mother. It is also questioned whether it is too harmful to ask her to give the child up if she changes her mind. The intended parents, however, are often the genetic parents of the child. They have generally suffered extensive heartbreak due to their own infertility, and invest considerable emotional and economic resources into the surrogacy process. Is it fair, therefore, that their hopes should be dashed at the last moment?

Clearly, there are many difficult questions to be taken into account when considering how surrogacy law might be reformed. The topic is full of interdisciplinary challenges, and thus a highly interesting one to explore.

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