Maybe baby: commercial surrogacy and the Subcontinent
Here in the UK we take a very conservative approach to surrogacy: it is illegal, for example, to advertise that you are seeking a surrogate mother, or that you are willing to work as one.
Such restrictions encourage an ad hoc, informal approach to surrogacy, adding a huge element of uncertainty to what is already a fraught transaction. Surrogacy arrangements have no status in UK law, so surrogate mothers can refuse to surrender their baby after the birth.
The commissioning couple can never be sure they will become parents.
The almost inevitable result has been the rise of multinational surrogacy arrangements. British couples struggling with fertility issues have taken their custom elsewhere, to countries with more permissive approaches to this very 21st Century spin on childbearing. India, for example, still has no surrogacy laws at all and a booming surrogacy market has sprung up on the Subcontinent in recent years, catering in particular to wealthy westerners.
A story published over the weekend in the Daily Mail took a long look at one couple who have turned toIndia: Britons Octavia and Dominic Orchard. After the birth of their first child, complications left Octavia unable to bear any more children naturally. She took the news very badly, telling the newspaper:
“I felt not only bereft, but completely worthless. I felt I’d let Dominic down….I’d failed as a woman.”
It is easy to forget that genuine pain and desperation frequently lie behind a couple’s decision to seek surrogacy, not the self indulgence sometimes insinuated by parts of the media.
Octavia and Dominic explored their options. They soon realised the uncertainties of surrogacy in the UK. Surrogate mothers remain the legal mothers of the children they have given birth to, unless and until the commissioning parents obtain a parental order.
The law in many other countries is similar to theUK. Elsewhere, for example the US, costs can be very high.
India, by contrast, neatly combines relatively affordable surrogacy clinics – the Orchards paid £20,000 – with a purely commercial approach.
The Orchards made their choice and an Indian woman living inHyderabadis now playing host to an embryo created from Mrs Orchard’s eggs and fertilised with her husband’s sperm. In other words, the couple are the full biological parents of the child.
The surrogate mother will receive between £3,000 and £6,000 when the child is born in November: a very large sum by local standards.
Mrs Orchard told the Mail:
“Her womb is just the receptacle in which it is being carried. Perhaps it sounds cold and rather clinical, but this is a business transaction. There is no altruism involved on the surrogate’s part: she is being paid to have our baby. It’s a contractual arrangement.”
After the birth Mr and Mrs Orchard will have to tackle the complex process of bringing the child home to theUKand having him or her recognised in law as their child. Under UK law, most surrogate children born abroad are effectively stateless until their parents apply for him to be registered as a British citizen. This is done on a case-by-case basis and can take months. The Orchards may have a long wait ahead of them in Hyderabad.
The couple will also have to apply for a parental order within the first six months of the child’s life. Parental orders grant the parents full status, completely remove the status of the surrogate mother, and provide a British birth certificate for the child. In multinational surrogacy cases, applications will usually also involve asking the government to retrospectively ‘authorise’ commercial payments made to the clinic and/ surrogate mother. This requires a time-consuming decision by a senior judge.
We explored some of the complexities surrounding surrogacy in a previous story . Clearly multinational arrangements add a whole new layer of complication to an already difficult situation and it is certainly testament to the desperation of the commissioning parents that they are willing to undergo such effort and expense in pursuit of their dream.
But, really, why do we place infertile British couples in this extraordinary position? Surely it is time to take a closer look at British surrogacy and adoption laws? At the moment surrogacy laws do place all the power in the hands of the surrogate, even if the child she is carrying is not genetically related to her. Even the surrogate’s husband retains the right to say no to a parental order! Whilst on the one hand one can understand the concerns of a woman who has carried and given birth to a child, on the other hand, with a strict time limit of six months in place for orders, it is quite easy to see the potential for blackmail and similar abuses. Such a situation seems quite at odds with most people’s understanding of the concept of surrogacy who are not directly involved.
I for example can see no reason for the law’s insistence that only a couple may apply for a parental order. What if the commissioning parents suffer a breakdown in their relationship between the initial arrangement and the birth? It could easily happen. There is nothing to stop a single person adopting a child.
Another question for us to ponder: is infertility the sole motivator for seeking a surrogate mother? I don’t find it difficult to foresee women eventually doing so to avoid becoming pregnant and interrupting their careers. This may already be happening in countries like the US.
Medical science moves quickly and the law seems to be struggling to keep up.
[Photo by Jenny Kaczorowski]
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Marilyn Stowe is the senior partner in Stowe Family Law, which has offices in Yorkshire, Cheshire and London. With more than 30 years’ experience handling divorce cases and family law proceedings she is regarded as one of the most formidable and sought after divorce lawyers in the UK. In 2012, Marilyn became one of the first solicitors to qualify as a family law arbitrator.
All persons mentioned in the scenarios are fictitious: details have been deliberately changed in order to protect identities and other confidential circumstances of my clients. All advice and information on this blog including posts written by guest authors, is given only as a general guide to the operation of the law on the date of publication. Readers must place no reliance whatsoever on the content of this blog and must always obtain their own legal advice. Marilyn Stowe, Stowe Family Law LLP and guest authors accept no liability whatsoever arising as a result of reliance upon its content.
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