surrogacy medical debate
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A critical analysis of the British legal system and the way it governs surrogacy practices in the UK.TRANSCRIPT
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Statutory Regulation Of SurrogacyWho does the law protect?By Jamal Ross
“Everything about woman is
a riddle, and everything in
woman has one solution:
that is pregnancy”2. This
misogynistic view employed
b y o n e o f t h e e a r l y
f o re fa thers o f modern
philosophy is, arguably, still
an inherent part of modern
s o c i e t y . M a n y w o m e n
b e l i e v e t h a t b e a r i n g
children is an integral part
of womanhood and at times
men may view women as
‘baby-making machines’3. If
a coup le i s unab le t o
naturally conceive or carry a
pregnancy, their embryo can
be placed into the uterus of
a n o t h e r w o m a n f o r
gestation-this is known as
full surrogacy. This woman
acts as a surrogate; she
carries the pregnancy until
birth with the intention of
returning the baby to the
commiss ion ing coup le .
Alternatively, the surrogate
m a y u n d e r g o p a r t i a l
s u r r o g a c y w h e r e s h e
inseminates herself with the
sperm of the commissioning
father so she will, in effect,
be the biological mother of
the child.
S u r r o g a c y p r o v i d e s a
solution for couples that are
unable to have children. The
current laws governing
s u r r o g a c y h a v e b e e n
ridiculed2 for failing to
address some of the key
issues that arise and, as a
direct result, there is a
growing demand for social
An Indian Surrogate prepares to give birth to a baby boy for an American couple who are unable to conceive a child.
Mar
ch 2
013
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reform. A recent statement
m a d e b y S t e p h a n i e M .
Caballero
(Pictured right) stated that the
s t a t u t o r y r e g u l a t i o n o f
s u r r o g a c y i s s o m e h o w
inadequate in safeguarding
those who are genuine victims
o f c h i l d l e s s n e s s . I n m y
opinion, this is a valid scrutiny
of current British law. In this
ar t i c le , I wi l l c r i t i ca l ly
evaluate the weight of this
statement by analysing the
f o l l o w i n g a r e a s : N o n -
e n f o r c e a b i l i t y a n d l e g a l
p a r e n t h o o d , p r o c r e a t i v e
autonomy and the outsourcing
of pregnancy.
Non-enforceability and legal parenthood
Historically, there has been a
natural aversion to the practice
of surrogacy; it was coined by
Omrod LJ as an ‘inhuman
proceeding’ in A v C2 and later
ridiculed3 in the 1984 Warnock
report. Perhaps, this prima
facie repugnance to surrogacy
s t e m s f r o m t h e c o m m o n
i m p l e m e n t a t i o n o f t h i s
technique in rearing cows as
alluded to by Cumming Bruce
LJ when he likened it to a
‘baby farming operation’2.
In Re C (A Minor) (Wardship:
Surrogacy)3 – the ‘baby cotton’
case- regarding a baby who had
already been born due to a
surrogacy arrangement, Latey
LJ affirmed that ‘All that
matters is what is best for her
now that she is here’. This case
set the precedent for how
surrogacy arrangements are
viewed in the courts in that it
would rarely be justifiable to
order the surrogate, by law, to
r e t u r n t h e b a b y t o t h e
commissioning couple.
The Human Fertilisation and
E m b r y o l o g y A c t 1 9 9 0
introduced section 1B into the
Surrogacy Arrangements Act
1985 which states that: ‘No
surrogacy arrangement is
enforceable by or against any of
the persons making it2’. Thus,
s u r r o g a c y a r r a n g e m e n t s
themselves are not illegal per
se3 but any arrangements made
by the participating parties are
n o t l e g a l l y b i n d i n g a n d
prosecution may not be taken
against those who refuse to
fulfill their agreements. This
laissez-faire approach does
l i t t l e t o p r o t e c t t h e
c o m m i s s i o n i n g c o u p l e ,
particularly if all alternative
forms of assisted reproduction
such as IVF , have been
exhausted.
“Statutory regulation of surrogacy does not serve the needs of those who would wish to use surrogacy to overcome childlessness.”
Stephanie M. Caballero
Surrogacy Lawyer , USA
Hyderabad Surrogacy ClinicHyderabad Fertility Clinic in India uses advanced IVF technology to grant prospective parents a biological child.
3
In 1984, the Warnock report was
published by a committee to give
guidance on rapidly advancing IVF
technology and the pract ice o f
surrogacy. The report has been widely
influential in the formation of the
Human Fertilisation and Embryology
Act [HFEA] 1990, however, i ts
recommendations regarding surrogacy
have not been completely implemented.
The committee overtly stated:
“We recommend that it be provided by
statute that all surrogacy agreements
are illegal contracts.2”
One can easily see the dangers of
implementing such an uncompromising
strategy as it may force the emergence
of an underground trade3 particularly
as fertility rates have been on a
steadily decline in 20-25 year olds4.
Interest in surrogacy was reinstated in
1 9 9 8 w h e n t h e g o v e r n m e n t
commissioned a report from the Brazier
committee2, which like the Warnock
report, proposed that regulation of
surrogacy should not endorse its
practice3. Interestingly, the minister of
public health at the time, Tessa Jowell,
specif ied that ‘enforceability of
contracts’ was not to be on the agenda
of the Brazier report4. This is rather
surprising as it is undoubtedly a
fundamental part of Jowell’s initial
reason for obtaining a report, namely
‘to ensure that the law continued to
meet public concerns’5
Section 33 of the HFEA (2008) outlines
unambiguously that the woman who is
carrying or has carried a child is the
legal mother of the child:
‘The woman who is carrying or has
carried a child as a result of the placing
in her of an embryo or of sperm and
eggs, and no other woman, is to be
treated as the mother of the child.’ 6
This would mean that a gestational
surrogate7 reserves the right to
terminate the pregnancy of a foetus
which is, at least genetically, not
related to her. In order for the
commissioning couple to be treated as
the legal parents of the child, they
must either undergo an invasive
process to adopt that child8 or apply for
a parental order under section 30 of the
HFEA [1990]9.
In regards to paternity, under section
28 of the HFEA (1990) and section 38 of
the HFEA (2008) the surrogate’s
husband or civil partner is deemed as
the legal father unless he did not
consent to her treatment. Involuntarily,
he may be assumed to consent if he
knew of her decision but, at the time,
did not object. In Re G2 it was initially
thought that the surrogate mother’s
estranged husband, who resided in
Spain, was the legal father as there
was no sufficient evidence to show his
objection to her treatment. However,
due to his estrangement he was unable
to give his consent to the granting of a
parental order.This case was proven to
be particularly dif f icult as the
commissioning couple resided in
Turkey, but a prerequisite of a parental
order is that one of the parents must be
domiciled
4
Octavia and Dominic Orchard (Pictured below) travelled to the Hyderabad clinic to get around a UK ban on commercial surrogacy.
Daily Mail , Sept 2012
in the UK, a need that was also expressed by
the Brazier committee2 where they discussed a
hypothetical ‘surrogacy act’ which would ensue
a code of practice that organizations such as
COTS can comply with.
These laws were really designed to govern
sperm donation but have been extrapolated to
preside over surrogacy cases, as there is no clear
legislative infrastructure. In this case, the
biological father is treated merely as a sperm
donor and may not acquire legal parenthood
status unless a successful parental order or
adoption has been completed. For a parental
order to be successful, the surrogate must agree
unconditionally to the making of the order as
well as the surrogate’s partner if he has been
regarded as the father3. The child must also
already be living with the commissioning couple
before the application is made. Adoption,
however, is regulated under the Children Act
(2002) and likewise, consent is required from
the surrogate unless they are found incapable of
c o n s e n t i n g 4 . I n b o t h s c e n a r i o s , t h e
commissioning couples are powerless and rely
Defining Parentage in SurrogacyWho is the rightful mother?
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on the surrogate parents to agree to the
transferral of legal parental responsibility.
The Surrogacy Arrangements Act (SAA) 1985
was passed in order to stop the commercial
involvement of surrogacy arrangements2. In Re
X and Y3 disproportionate sums of money were
paid to the surrogate, which exceeded ‘expenses
reasonably incurred’4. However, it was raised by
Hedley J that payments will almost always be
retrospectively authorised by the courts as the
welfare of the child is of primary concern.
Parenthood may be defined by either of the
following perspectives: genetics, intention,
gestation, or causality2. If one employs the
lockean notion of self-ownership3 then it could
be argued that the biological parents own the
DNA from which the child is composed, granting
them a warranted parental claim. However, an
argument of this kind has been criticized4 for
deriving claims of parenthood from premises
pertaining to ownership. Furthermore, the
concept of self-ownership would suggest that
children own themselves and thus dispels any
biological proprietary claim made by parents.
Additionally, this point disregards the
essentiality of the placenta and other
extraembryonic membranes, which provide
nutrition and protection to the foetus and are
entirely derived from the gestational mother.
Our perception of heritability does not account
for the fact that children also exogenously
inherit religious beliefs, customs, habits and
personality traits.
In Johnson v Calvert2, the California Supreme
Court declared that both the gestational mother
and the commissioning mother (who was also
the biological mother) had shown ‘acceptable
proof of maternity’. Justice Panelli used
intention as the factor to decide who should be
the rightful mother. Since the gestational
mother voluntarily contracted away any rights
to the child, it was evident that it would not be
in the child’s best interests to go into her
custody. Whilst it is true that without the
commissioning couple, the child born of the
surrogacy arrangement would not have existed,
it is virtually impossible to decide parentage on
the basis of causality, as the gestational mother
is also a causal agent namely through the
implantation of the embryo into the uterine
wall.
The present law governing surrogacy is monistic
in that there is a presumption that gestation
alone can be used to identify the mother. A
pluralistic approach, whereby other factors,
apart from gestation, are considered may lead to
the commissioning couple being declared as the
rightful parents, as explained by Panelli J2.
In the more contemporary case CW v NT2, the
commissioning couple sought to obtain a
residence order under the Children Act 1989 as
the surrogate decided to keep the baby that she
had agreed to hand over. The application was
refused on the basis that the baby had a good
attachment with the mother and was thriving in
her care. Here, Baker J affirmed that the
primary consideration was what would be in the
baby’s welfare and, considering this, concluded
that removing the baby from the mother would
be unjust.
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Is there a right to Procreative autonomy?
It is typically a sacrosanct principle
that there is a right to private and
family life2. Moreover, whilst there is a
right to life3 there is no legal right to
create new life. An important question
is ultimately whether we consider
childlessness to be a type of pathology
and hence an area of public interest
which creates a duty of care from the
National Healthcare Service. More
importantly, does a woman have a right
to motherhood? And, if so, does a man
also have a right to fatherhood? If one
is to accept the first premise then,
through the notion of sexual equality, it
would suggest that homosexual couples
too are entitled to ‘have’ children. As of
the 6th of April 2010, gay couples were
allowed to apply for parental orders
and become legal parents through
surrogacy. Perhaps, this is due to the
general consensus that a right to
motherhood and fatherhood exists.
If we subscribe to forms of a ‘natural
rights theory’, particularly the notion
that rights are intrinsic by virtue of
their being God’s creation, it would
follow that men and women are
entitled to such experiences. On the
other hand, one might contest the
above position by supposing that rights
are given by society and are not
intrinsic. From this, it would support
the ability of the government to
“A human right to procreate involves an obligation on others not to limit a person’s liberty to decide when and how many children he will have”Michael Bayles
Procreative LibertyKnowing your rights
Pushing BoundariesKate Georgeman has a child at the age of 56 with the help of a much younger surrogate mother.
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overturn an individual’s article 8
rights, as it is merely a qualified right
and not an absolute right.
John Robertson defends the right to
procreative liberty and asserts that it is
inextricably linked to autonomous
parental choices2. Perhaps though, part
of the reluctance of society to grant
procreative autonomy is that it would
also subsume a right to prenatal
testing and preimplantation diagnosis,
which may promote a slippery-slope
ideology, allowing people to control
whether their offspring have particular
traits, initiating a kind of bottom-up3
eugenics.
The process o f pregnancy and
childbirth has been increasingly
medicalised in the 21st century and is
therefore managed and overseen by
medical professionals. The feminist
bioethicist Lyerly argues in her
poignant discourse ‘shame, gender,
birth’4, that there is a problem with the
culture of birth and pregnancy in that
it is expert-centered rather than
patient-centered and ‘focuses on models
of birthing rather than women’s
emotional lives’. This view supports the
initial statement that statutory
regulation does not cater to those
trying to overcome childlessness as
people tend to be enthralled by the
medical feat of surrogacy rather than
its utility and cultural significance.
Outsourcing of pregnancy- Exploitation or philanthropy?
The vociferous opponent of surrogacy
arrangements, Mary Warnock, in the
1984 Warnock report wrote:
“It is therefore with the commercial
exploitation of surrogacy that we have
been primarily, but by no means
exclusively, concerned.5”
To suggest that surrogacy is somewhat
exploitative requires, in my opinion,
rigorous validation, which the Warnock
report fails to provide, yet it is crucial
to determine whether the ‘needs’ of
commissioning couples are justifiably
disregarded. By analysing the process
of outsourcing pregnancy, one can
determine whether this is due to a
failure of British statute to overcome
childlessness or an insight into the
exploitative nature of surrogacy.
Recently, there has been a growing
trend of prospective parents seeking
out surrogate mothers in India at a
reduced cost and with other legal
benefits. In India, the surrogacy clinics
recruit local women who are screened
for a plethora of infectious diseases.
The healthiest women are chosen as
surrogates and fertilised embryos are
i m p l a n t e d i n t o t h e s u c c e s s f u l
Outsourcing WombsThe booming Surrogacy Industry In India
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candidates. Interestingly, there is a
contractual agreement, which under
Indian law, specifies that the surrogate
m u s t r e t u r n t h e b a b y t o t h e
commissioning couple after giving
b irth . Some would regard this
arrangement to be exploitative, partly
because monetary payments are even
lower than in the developed world and
the women are often living in extreme
cases of poverty. It has been said that:
“To exploit a person involves the
h a r m f u l , m e r e l y i n s t r u m e n t a l
utilization of him or his capacities, for
one’s own advantage or for the sake of
one’s own ends2.”
This definition would support the view
that surrogacy is, by its very nature,
exploitative. Yet, in saying that, it
could also be argued that exploitation
only exists when the ‘advantage
received is incommensurate with the
price paid’3.
This begs the question: What is a fair
price to pay for a child? In one sense,
these surrogacy arrangements are a
form of consensual exploitation but are
also reciprocally beneficial. However,
a l t h o u g h t h e b e n e f i t s o f t h e
a r r a n g e m e n t a r e s h a r e d , t h e
exploitation itself is asymmetric. On
the one hand, Hill postulates2 that
exploitation is psychological rather
than being an economic or social
“Persons are exploited if others secure a benefit by using them as a tool or resource so as to cause them serious harm.”
Munzer, 1990
Outsourcing WombsPictures taken at Hyderabad clinic, where thousands of Westerners flock to pursue surrogacy options.
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concept. He states that exploitation must take
‘advantage of some recognised psychological
vulnerability which, in turn, disturbs the
offeree’s ability to reason effectively.’ Most
notably, this resonates with the current
surrogacy pacts that are made in India. The
money that Indian surrogates receive is equal to
15 years of wages and enables many of them to
buy a house, ameliorating some of the daily
turmoil of poverty. Perhaps, this incentive
distorts their ability to make a rational choice or
coercion from family members may be sufficient
for a woman to enroll in the surrogacy scheme
making her agreement nonconsensual.
Conclusion
Mason and smith purport that the judicial
procedure is derived from the ‘fait accompli’
with little compassion for those involved2.
Personally, I am of the view that the statement
raises a valid claim that the needs of
commissioning couples are not served
a d e q u a t e l y . M o r e s o , i t e n c o u r a g e s
marginalisation and inequality as mothers who
are poor or who have no family ties are less
likely to have access to willing surrogates.
Possibly, the reason for the monistic legal
definition of maternity is that it is a practical
means to determine who the legal mother is
with little confusion. To some degree, there
needs to be a reconceptualisation of surrogacy
by society, which, in turn, may make practices
such as child sharing more acceptable2. Current
social attitudes negate previous assertions that
surrogacy is prima facie unlawful implying that
the relevant laws are somewhat outdated. Some
have argued on religious grounds that surrogacy
itself is ‘unnatural’3 and against the will of God.
Conceptually, it could be said however that
Mary, the mother of Jesus, was acting as a
surrogate, in that she never engaged in any
sexual activity but conceived and gave birth to a
child.
Needless to say, there is no explicit right to
procreate so a duty of care does not necessarily
arise. In closing, the overriding issue is the lack
of an overseeing body to govern organisations
such as COTS. In 2004, a surrogate mother,
Carole Horlock, underwent full surrogacy for a
commissioning couple, giving birth to a healthy
baby boy. It was not until a few months later
that the couple discovered, through a DNA test,
that the baby was not theirs biologically but was
the child of the surrogate and her husband. This
further exemplifies the disastrous outcomes
faced by not having a supervisory mechanism to
closely monitor these arrangements which may
ultimaltely lead to the detriment of the
commissioning couple and the child.
Author: Jamal Ross© Meddebate 2013
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References
Books
Friedrich Nietzsche, ‘On Little Old and Young Women’ in Thus Spoke Zarathustra, trans. Walter Kaufman, in The Portable Nietzsche, New York: Penguin Books, 1954, p.178-9.
Kuhse and Singer, Bioethics,(2006) Blackwell philosophy anthologies, 2nd Ed, pp 150-156
Cook, R. (2003) ‘Surrogate Motherhood: International Perspectives.’pg 118
LK. Mason and A. McCall Smi th , ( 1999 ) , Law and medical ethics (5th Edn.)
Harrison-Barbet, Mastering Philosophy, 2nd ed (2001)
Jackson, Medical Law. 2nd ed ., Oxford: Oxford University Press, (2010)
Herring, Medical ethics and law, 3rd ed .,Oxford: Oxford University Press, (2010)
Journals And Other Academic Literature
Mary Warnock, ‘Report Of The Committee Of Inquiry Into Human Fertil isation And E m b r y o l o g y , ( 1 9 8 4 ) Department of Health & Social Security. ch 8, para 8.19 pg 47
Shalev, C. ‘Birth Power’, (1989) New Haven: Yale University Press.
M i c h a e l f r e e m a n , ‘ D o e s surrogacy have a future after Brazier?’ (1999) 7 Medical Law Review 1-20
Olsaret t i , Serena . 2004 . L iber ty , Deser t and the
Market. Cambridge University Press. p. 91
Bayne and Kolers, ‘Parenthood and Procreat ion ’ , (2006) Stanford Encyclopedia of Philosophy
Lyerly, Anne Drapkin, ‘Shame, g e n d e r , b i r t h ’ ( 2 0 0 6 ) , HYPATIA 21(1) pp. 101-118
Buchanan, A., (1985), Ethics, Efficiency, and the Market, Totowa: N.J.: Rowman and Allanheld.
Benn, S., 1988, A Theory of F r e e d o m , C a m b r i d g e : Cambridge University Press.
Hill, J.L., 1994, “Exploitation,” Cornell Law Review, 79, pp. 631-99.
Wallbank, J. (2002) ‘Too many mothers? Surrogacy, kinship and the welfare of the child’, pg 293
Brazier, M. (1999) ‘Regulating the Reproduction Business?’, Medical Law Review 7
W e r t h e i m e r , A . ( 2 0 0 8 ) ‘ E x p l o i t a t i o n ’ , S t a n f o r d Encyclopedia of Philosophy
Satz, D. (2010) ‘Feminist Perspectives on Reproduction and the Family’, Stanford Encyclopedia of Philosopohy
Kukla and Wayne,. (2011) ‘ P r e g n a n c y , B i r t h , a n d M e d i c i n e ’ , S t a n f o r d Encyclopedia of Philosophy
Websites
http://www.vjmovement.com/truth/416
-http: / / fora.tv /2009/07/20/Michael_Sandel_on_Markets_and_Morals – Outsourcing pregnancy to India.
-http: / /plato.stanford.edu/entries/feminism-family/
-http: / /plato.stanford.edu/entries/parenthood/
-http: / /plato.stanford.edu/entries/exploitation/
Statutes
Surrogacy Arrangements Act [1985]
Human Ferti l isation and Embryology Act (2008)
Children Act, [2002]
Human Rights Act [1998] Article 8
Human Rights Act [1998] Article 2
Cases
-CW v NT [2011] EWHC 33 (Fam)
- A v C Not reported until 1985, [1985] FLR 445.
-Briody v St Helens and K n o w s l e y A r e a H e a l t h Authority [2001] EWCA Civ 1010
- Johnson v Calvert 851 p 2d 776, 782 (Cal 1993)
-[1985] FLR 453
-Re C (A Minor) (Wardship: Surrogacy) [1985] FLR 846
-Re G [2007] EWHC 2814 (Fam)
-Re X and Y [2008] EWHC 3030 (Fam)
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