The Surrogacy Essay
The surrogate mother should be allowed to receive payment over and above her actual expenses, and the remit of the Human Fertilisation and Embryology Authority should be expanded to regulate the practice of surrogacy in the UK. Critically assess this statement within the context of the legal and ethical issues which it raises
Surrogacy has been in practice since Biblical times though not in the form of human reproduction technology as at present. It is said that Bible story has its repercussions even today for disobeying the God’s Command and due to engaging of Hagar by Sarah to bear her husband Abraham’s child as Sarah was not herself able to produce babies. ( )
It is not surprising, therefore, the surrogacy was condemned outright when it reared its head in a new form in the early 80s The practice of surrogacy was not legally allowed until 1994 ever since it was started in 1984 in the U.K. for various ethical and technical reasons. While it has taken 10 years for the U.K. Government to deliberate on the subject and come to terms with inevitable practice of surrogacy to meet the aspirations of the childless couples, the U.K. Government has been unequivocal in prohibiting extra payment to the surrogate mothers over above the expenses incurred for the treatment and also loss of earnings due to confinement.
Surrogacy is still illegal in Austria, Germany, Sweden and Norway. In Finland, Greece and Ireland surrogacy is in practice with no law in force. Australia does not allow for commercial purposes. France, Denmark and the Netherlands prohibit any payments to surrogate mothers unlike in U.K. to a reasonable extent. In the U.S, it varies from State to State but in no State it is allowed for commercial purposes. This paper seeks to critically analyse the proposition for extra payment also and the case for expanding the scope of Human Fertilisation and Embryology Authority to regulate the practice of surrogacy in U.K. Background Before embarking on the issue of legalising ex-gratia payments for surrogacy service, the history that led to the recognition of surrogacy needs to be looked into.
First ever case of surrogacy took place in 1978 but appeared in the press very late. In the said case A v C (1985) ( ), A and his partner not having children arranged with C for bearing a child through A’s sperm for a consideration of £ 3,000. Later C refused to part with the child. The court held that though the contract could not be enforced, A could have the child. The reason cited by the Judge Comyn was public policy. The contract for purchase and sale of child was against public policy. On appeal by the surrogate mother, appeal court could not have the custody of the child. In a later case Re C (A minor) (Wardship:Surrogacy) (1985) ( ), a couple from America approached Kim Cotton in the U.K. who consented to give birth to a baby through artificial insemination through the commissioning father’s sperm.
When the dispute arose, local council took order of safety for the child while the commissioning father commenced Wardship proceedings to get the child. The Court held Kim Cotton had given up all her rights over the child and the couple alone could have the child in its best interests. During those years court viewed such cases through public policy considerations. Then Government enacted Surrogacy Arrangements Act 1985 to prevent making money by the agencies. Section 2(a) of the Act makes it a criminal offence if any one indulges in the act of (i) initiating or taking part in negotiations with intentions to make surrogacy arrangement, (ii) offering or agreeing to negotiate the surrogacy arrangement or (iii) collecting information for use in such negotiations and (iv) also inducing or causing others to indulge in such acts.
However a woman intending to be a surrogate mother can enter into the above prohibited acts as per section 2 (2) and also to receive payments as per section 2 (3). Like wise a commissioning parent is also allowed to commit such acts for his/her own purpose. Lawyer who drafts out such agreements is not committing any offence but will not be entitled to payment. A doctor who does the IVF treatment and any other medical helps also is not deemed to commit an offence. After a long pause, British Medical Association (BMA) came out with a guidance stating that surrogacy can be allowed as a last resort when it becomes impossible for the woman to take up pregnancy. Some times it is alleged that women go in for surrogacy for the sake convenience in order avoid the rigours of pregnancy but no evidence has come to surface as vouched by the BMA.
Still the commissioning parents must take care to avoid committing an offence under the Adoption Act 1976 which says that it is an offence to give or make payments for adoption except under approval of a court. Section 3(1) prohibits advertisement offering surrogacy or soliciting surrogacy. The proprietor of the News paper or any other media publishing the advertisement also will be liable along with the persons who advertised. The Surrogacy Arrangement Act 1985 was amended through section 36 (1) of HFEA 1990 making all surrogacy arrangements unenforceable.
However private surrogacy arrangement is allowed, it is also unenforceable. However two possibilities are still there when the aggrieved party wants to enforce the surrogacy contract during pregnancy and when the affected party tries to enforce the surrogacy contract after the baby’s birth asking the mother to part with the baby born. In a U.S. case Re Baby M (1987) ( ) Mary Whitehead agreed to surrogate pregnancy through artificial insemination a commissioning parent’s sperm and agreed to hand over the child when born to the parents Mrs and Mr Stern. Surrogate mother was also promised to be paid $ 10,000 for the service and expenses to Mrs Whitehead who in turn agreed to give up her all parental rights over the child and give it in adoption to Mrs and M Stern. But on birth, the surrogate mother refused to hand over the child.
Though the court of first instance held that a valid contract had been breached, the New Jersey Supreme Court held the contract invalid since it contained the prohibited terms of payment for adoption and also that it was against public policy requiring the surrogate mother to give all her parental rights over the child. But since the child had already lived with the commissioning parents, court allowed them to continue to keep the child. In U.K. similar difficulties arose in Re P (Minors) (Wardship: Surrogacy) (1987) ( ) In this case, Mrs P was a divorced woman and consented to carry the baby for Mrs and Mr B in consideration of payment. But the woman refused to return the twin babies born.
The court examined the circumstances under which the twins have grown during the period of five month and decided in favour of their surrogate mother even though, commissioning parents were financially better off and could give the children more stimulating environment. The bondage the twins had developed was the foremost in court’s view for its decision. As per section 111 of the Adoption and Children Act 2002, father whose name is mentioned on the birth certificate of a child also has parental responsibility. This caused problems in cases of assisted reproduction since the infertile woman implanted with embryo became the mother on birth of the child though not genetically connected. In a typical case Re W (Minors) (Surrogacy) (1991) ( ), a married woman implanted with the embryo from commissioning father’s sperm and commissioning mother’s egg even though she returned the child, she necessarily became the mother and her consenting husband, the father of the child.
Hence a new section was inserted HFEA 1990 as 30(1) enabling a court make a parental order to make the child as the child of the commissioning couple though born to the surrogate mother whether through an embryo or sperm or eggs or her artificial insemination or the gametes subject to the conditions that application must be made within six months of birth, that at the time of application the child is with the husband and wife, that the husband and wife are more than 18 years of age, that the child’s father who is not the husband and the surrogate mother have consented to making of the parental order and that in case the father can not be found, agreement is not necessary. The surrogate mother’s agreement is not valid if given within six weeks of child’s birth.
Lastly no payment or any other benefit except reasonable expenses should have been given without the order of the court. This section excludes parental order for heterosexual couples but criticised as highly discriminatory. The committee headed by Professor Margaret Brazier in its report recommended that payment to surrogate mother should only be for meeting genuine actual expenses to be broadly defined by the legislature and detailed by regulations. Agencies partaking in surrogacy arrangements should get themselves registered with Health Department and a code of practice should be developed for them by the Health Department.
It also made recommendations for repealing of Surrogacy Arrangements Act 1985 and s 30 of HFEA 1990 and introduction of a new Surrogacy Act providing for legal principles of surrogacy including non-enforceability of surrogacy contracts, banning of commercial agencies, statutory provisions for payments to surrogate mothers , a code of practice, providing for non-profit making surrogacy agencies, banning of unregistered agencies, and a revised s30 parental order making it obligatory for the applicants to prove having followed the provisions of the Surrogacy Act and that commissioning couples must be the resident of UK, Channel Islands or the Isle of Man. Brazier committee placed Child’s interests as of paramount importance.
The Health Minister on review of HFEA 1990 in 2004 announced that 73,000 children had been born due to the treatment under the Act. Allowable Expenses recommended by Brazier committee The Surrogacy report had recommended only expenses towards maternity clothing, healthy food, domestic help, travel to & from hospital clinic, telephone and postal expenses, overnight accommodation, child care to attend hospital/clinic, medical expenses, ovulation and pregnancy tests, insemination and IVF costs, medicines and vitamins, counselling fees, legal fees, life and disability insurance, and loss of earnings. ( ) Warden J ( ) reported in October 1998 that at least 100 children were produced by surrogate mothers every year and that payments to them ranged from £ 10,000 to 15,000 for letting out their wombs.
He was commenting on the report just released for the health ministers which said left to themselves women would be lured to take up surrogacy as a profession as means of earning. The report had recommended violation of payment limits should empower courts to refuse to issue parental orders to the commissioning parents. Regardless of the good intentions of surrogacy, here is a case which points out to the outcome of an indiscriminate surrogacy. Dr Horsey ( ) reported that a young 29 year old Natasha Caltabiano who already had two children gave birth to a baby on surrogacy arrangement with a couple of 52 and 48 years who already had five children. She developed aorta rupture and died of heart attack 90 minutes after the child’s birth.
This happened in 2005. The commissioning parents though had taken insurance on surrogate mother’s life as per U.K. law, they refused to part with the insurance compensation as they had incurred heavy legal expenses as a result of her death. The baby now had no legal guardians to give him in adoption to the commissioning parents due to the mother’s death and living away of her estranged partner. Mason ( ) in her world’s first study on surrogacy states that parenting qualities of commissioning parents are found to score more than natural parents do in respect of warmth, emotional involvement, mothering and fathering qualities towards the child. And there is not much concern about the surrogate mothers’ emotional well being post handing over of the children except in one case.
This study does not mention any thing about payment made to the surrogate mothers. The COTS (Childlessness Overcome Through Surrogacy) of U.K has supervised 415 surrogacies so far in addition to 92 cases awaiting births. ( ) Case for paid surrogacy Feminist Law Professors posit that when surrogacy is unique to women, they can not be considered as parents when it comes to surrogacy in order for commercial surrogacy to be viable. The pregnancy part alone is uniquely feminine and parent hood should be disconnected from feminine. When pregnancy stands alone, it becomes a service which only women can perform. Hence it can be bought and sold.
This commercialisation can be a way of freeing the women to make use of their unique qualities. Otherwise it becomes an altruistic and compassionate surrogacy and denying women their rights by virtue of their creation as females. ( ) This is absolute commercial surrogacy. The need of the hour is not commercialisation but payment as largesse for their gift of relationship. The fear that payment over and above actual expenses will lead to commercialisation is not well founded when other conditions for surrogacy continue to be in place. If by virtue of commercialisation sperm donors become anonymous, it will result in violation of human rights when the child wants to know its biological parents.
It was for this purpose The Human Fertilisation and Embryology Authority (Disclosure of Donor Information) Regulations 2004 was enacted to enable the Human Fertilisation and Embryology Authority to give donor information to a person over 18 years. The Warnock Report in order to prevent commercialisation of surrogacy raised certain points: that third party intervention in procreation is an attack on marriage, the interference is worse than AID as carrying mother gives greater contribution than the sperm donor, and that a woman should not use her uterus for financial profit.
This also creates surrogacy of convenience as the commissioning mother wants to avoid going through pregnancy. All these are unacceptable since someone is used as a means to an end which is against ethics. And hence the committee suggested to make it criminal if agencies operated for the purpose of recruiting women for surrogate pregnancy or facilitating individuals or couples needing the services of surrogate mothers. It also suggested that surrogacy contracts be made illegal so that they are not enforceable in courts of law though it did not want private surrogacy to be made illegal. It also maintained that on deontological point of view, surrogacy is a means to an end and unethical.
Even on utilitarian point of view, it can not be justified since compelling medical conditions can make possible exploitation of one human being on another. ( ) Some extra payment to surrogate mothers short of commercialisation can be justified because it gives comfort to isueless couples, it is a sheer altruism to bear a baby for legitimate persons, women should enjoy autonomy over their bodies, life is created, women can access surrogacy as they wish and it is similar to adoption. For giving such a rare gift of a child to childless couples, it worth taking more than the actual expenses since a women who may be in the lower end of the poverty risks her life (since pregnancy itself is a rebirth for women) for the sake of livelihood.
As there is a biological limit to number of pregnancy with medical conditions permitting, a woman can not afford to commercialise her pregnancy and it can happen in a woman’s life may be just for one or two more besides her own existing children. Surrogacy within closely related families take place out of love and affection spontaneously offered voluntarily without being asked. It is only after exhausting the close circles, the childless couple look for surrogate mothers. The second half of the 20th century and the current 21st century years have been witnessing more elderly people than the young adults. This is as result of increase in life expectancy and the progressively lesser production of population in developed countries. U.K. is not an exception.
Family planning has made dents on the population growth. The rampant infertility among couples is alarming indeed due to perverted life styles. If this trend goes unchecked, the population in the world will become extinct soon unless there are policies to improve fertility among the population. The surrogacy would certainly contribute its mite in mitigating this problem. There can be an exgratia payment to surrogate mothers which will not be counter productive. The children born of surrogate mothers will most likely to be fertile and would only add to the depleting population in the developed countries including U.K. Historically also, the world has witnessed bequeathing of wealth by wealthy people on persons out of love and affection and due to giving of their daughters into marriage. Hence exgratia payment out of love and affection to surrogate mothers should not be an ethical issue of condemnation.
The untold and inexplicable sufferings of infertile couples have at last found solace through surrogacy, premium payment for which should be worthy of praise. The ethical issues surrounding organ donation should be applicable to surrogacy as well. In U.K. receiving and giving reward for organ donation is an offence under Human Tissue Authority’s regulations. Yet organs are sold in the black market through exploitation of poor people from India and Pakistan. Paid surrogacy will also thrive in black market if rules are made to stifle its natural growth. Protagonists would agree that for all the good intentions behind an act of surrogacy risking one’s life, the meritorious act of life giving should not be condemned under the pretext of baby selling.
When there are rules to govern the surrogacy arrangements, no undue hardship to potential surrogate mothers can be visualised. It is only after the elimination process, surrogacy with genuine intentions emerges. Hence a concomitant exgratia payment is not going to make matters worse. If the commissioning parents could ill afford to pay actual expenses, there are instances of Government stepping in. The authorities have not been clear why extra payment should be prohibited, when surrogacy itself is now admitted. It does not appeal to reasoning when Surrogacy is permissible, extra payment is not permissible. There can be no exploitation of commissioning parents by surrogate mothers as market forces will set in to keep the premiums down.
Even if surrogate society as such is formed and huge amounts are demanded, anti-trust and anti-competitions regulations can step in to arrest such tendencies, though noble women who give in to surrogacy for good intentions will not stoop to such levels. Only if surrogacy is freed of such restrictions, its image can boost and command respect as a noble act. Commercialisation of bay sales will set in extra payments to surrogate mothers are encouraged. So what? Do the authorities mean to say there will be population explosion? No law or no court case has shown any evidence of ill effects of commercialisation.
What harm it would cause to the society if the surrogate mothers prosper by extra payments for the noble service they render. It is not a pleasurable experience to undergo pregnancy. At least prostitution can be associated with some pleasure for the service provider but not surrogacy. It is an act of compulsion for some plausible reason. It can be a genuine intent to undergo suffering for the sake of another. It can be an act of self sacrifice for self enrichment. Or it can be for both. It is a human right and dignity that can not be interfered with. The Brazier committee mentions that Childs interests are foremost in regulating surrogacy practices.
Child interests have been duly taken care of by the existing provisions of Surrogacy Act and HFEA 1990 sans the restrictive provisions of payment to surrogate mothers. Children are conceived with good intentions. Commissioning couples approach surrogate mothers only out of dire necessity. If payments are restricted, then not many women will come forward though there is a provision for loss of earnings. In capitalistic society where everything is profit driven, how surrogacy alone can be an exception. If children’s interests are foremost, it would amount to being partial as there is no law prohibiting marriage between poor couples and there is no prohibition to beget children for having no means to support their children.
Nor is there a law prohibiting birth of genetically defective or mentally retarded children for the predictable married couples out of natural intercourse. The idea of this argument is not that one can be bad if another one is allowed to be bad. But this is against natural law. If one goes back to evolution, there could have been only one father and one mother of whom the present population are the descendants. Hence the genetic link can only be common to all. The argument that genetic link will be lost if surrogate pregnancies proliferate can not therefore hold good. .Even going one step further, what the law at the beginning of life was, for procreation. The present growth is out of natural will of men and women.
Practices have changed and transformed according to change of times and new revelations. Hence prohibition of surrogate payment will only amount to stifling of evolution. By enacting necessary provisions in the relevant regulations, safe and genuine surrogacy have been ensured. The insertion of the restrictive clause against extra payment will be counter productive and make other provisions ineffective. It is naïve to expect that covert payment are not taking place at present. Hence it would desirable to legalise such payments and ensure some revenue to the exchequer. The Times online ( ) of April 2, 2008 says that a British team of scientists have developed embryos containing human and animal material for the first time just when the House of Commons are going to vote on research in a month’s time now.
The Newcastle University broke the news on April 1, 2008 that it had brought out an admixed embryos through injecting human DNA into empty cow eggs which will make admixed embryos to be used to produce powerful stem cells for investigating crippling diseases such as Parkinson’s and Diabetes though this has been opposed by Roam Catholic Church in Scotland. The proposed embryos are only for research purposes and these can not be injected into womb of a woman or animal as per law. Reason why this is highlighted here is that human survival instinct can go to any extent to save its progeny. If not through one own’s womb, it can be through another against which man made restrictions such prohibited payments should not stand on the way.
The HFEA 1990 says that it is an Act to provide restrictions on the treatment of human embryos and their further development by establishing a Human Fertilisation and Embryology Authority and also to provide for persons being treated as parents of a child and also to amend Surrogacy arrangements Act 1985. In view of the above said arguments in favour of payment to surrogate mothers which would only lead to healthy development of surrogacy practices, the scope the HFEA should be widened as to allow payments to surrogate mothers as otherwise this will remain at the stunted growth at present though covert payments already in practice can not be ruled out.
(1) Storey P Grayce. Ethical Problems Surrounding Surrogate Motherhood: Yale-New Haven Teachers [2008 April 1] Available from URL http://www.yale.edu/ynhti/curriculum/units/2000/7/00.07.05.x.html (2) A v C  FLR 445, CA (3) C, Re (A Minor) (Wardship: Surrogacy)  FLR 846 (4) Baby M, In re 217 N J Super 313 (1987) (US case) (5) P, Re (Minors) (Wardship: Surrogacy)  2 FLR 241 (6) Re W (Minors) (Surrogacy) [30 October 1990]. FAMILY LAW, 1991; 180. (7) Brazier Margaret, Campbell Alastair, Golombok Susan Surrogacy, Review for health ministers of current arrangements for payments and regulation, Report of the Review Team, 1998 p 48 (8) Warden John. Surrogate mothers should be paid expenses only; BMJ 1998; 317:1104(24 October) (9) Dr Horsey Kirsty. Legal battle over dead surrogate’s baby IVF>News 12 February 2005; [2008 April 1] Avialbe from URL http://www.ivf.net/ivf/legal_battle_over_dead_surrogate_s_baby-o1265-en.html (10) Mason Emma. World’s first study on surrogacy reveals high quality parenting and no problems; European Society for Human Reproduction and Embryology; 1 July 2002 [2008 April 1] Available from URLhttp://www.eurekalert.org/pub_releases/2002-07/esfh-wfs062902.php (11) Science Blog; European Society for Human Reproduction and Embryology July 2002 (12) Shapiro Julie. Feminist Law Professors Gender and Surrogacy1; [2008 April 1,] Available from URL http://feministlawprofs.law.sc.edu/?p=3275 (13) Greene Brendan. 2005 Understanding Medical Law; p 123, Routledge Cavendish (14) Henderson Mark, Science Editor, We have created human-animal embryos already say British team The Times April 2, 2008, [2008, April 3] Available from < http://www.timesonline.co.uk/tol/life_and_style/health/article3663033.ece
University/College: University of California
Type of paper: Thesis/Dissertation Chapter
Date: 20 March 2017