Lack of regulation leads to surrogacy confusion

fostering and adoption

I’m a proud mum and I have great sympathy for parents who find, for whatever reason, that they need to find an alternative means of having a family. Sperm banks are quite a clinical but efficient approach to the problem, while surrogacy is a very personal way of gaining that longed-for child. It’s also a potential minefield and the complications effect around 2000 children in the UK every year.

Under English law, the “gestational” mother is also the legal mother of a child, whether or not she’s the genetic mother, and if she is married, her husband is presumed to be the legal father. Any agreement made between a surrogate mother (who may not even be the genetic mother) and the intended parents is not recognised in law before the birth. This means that legally the surrogate mother can keep the baby and the intended parents can’t legally demand she hand him or her over without a court order. Or, putting the bootie on the other foot, the intended parents can decide they don’t want to go through with it after all, and then leave the surrogate literally holding a baby she never intended to keep. The only way to legally transfer the status of parent from the surrogate to the intended couple is a parental order.

Inevitably it is the cases of disputed surrogacy that gather most attention and a recent widely reported case in the Family Court really begs the question: is English law in this emotive area still applicable to the practical realities which face both surrogates and the intended parents who turn to them for help? In the case in question, the dispute revolved around a disagreement on the nature of the original agreement. The surrogate mother claimed that she was always intended as the main parent for the baby girl, while the intended parents, a gay couple, one of whom had donated his sperm, maintained that the woman had agreed to be the surrogate so that they could form a family. The surrogate and the child’s father had known each other for over 20 years. There were a lot of shenanigans during the case, both inside and outside the court room, and the judge was left with a less than stellar impression of the surrogate, her attitude to gay couples and her honesty when she agreed to be a surrogate. In the end, although the surrogate was still the legal mother, the judge decided that the child’s best interests were served by living with her father and his long-term partner.

What’s really interesting about this case is that it highlights how much law in this area needs an overhaul. The judge said that “the lack of a properly supported and regulated framework for arrangements of this kind has, inevitably, lead to an increase in these cases before the Family Court.”

The lack of formality is a clear contrast with some other jurisdictions like the United States. California for example provides front-end support, including psychological screenings and legal and medical advice, so that the surrogate and intended parents are very clear from the outset where they stand. Our lack of up-front support laying out what all sides are getting into is a recipe for potential dispute and it’s one of the factors responsible for driving prospective UK parents overseas to the US and India in search of greater security in their agreements. Central to the issue, of course, is that fact that commercial surrogacy remains illegal in the UK.

It’s very easy to say that there are more important laws to change than surrogacy – I have not exactly been silent in calling for cohabitants’ rights for example. But we maintain that in law, the welfare of the child is paramount and that was the basis of the judge’s ruling in this case. On that basis it’s completely counterintuitive to have a surrogacy law that doesn’t insist all parties lay out exactly what has been agreed and what will happen when the baby in question is born.

Deciding to have a child is a big decision for anyone to make. Asking someone else outside your relationship to be involved is quite a risk to take. For the sake of the surrogate, the intended parents and the child itself, it makes sense to take the uncertainty out of surrogacy agreements and help keep surrogacy agreements out of the courts.

Photo by roland via Flickr

Marilyn Stowe

The founder of Stowe Family Law, Marilyn Stowe is one of Britain’s best known divorce lawyers. She retired from Stowe Family Law in 2017.

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