March 2013

An Indian Surrogate prepares to give birth to a baby boy for an American couple who are unable to conceive a child.

Statutory Regulation Of Surrogacy

Who does the law protect?
By Jamal Ross

Everything about woman is a c o u p l e i s u n a b l e t o inseminates herself with the a riddle, and everything in naturally conceive or carry a sperm of the commissioning woman has one solution: pregnancy, their embryo can father so she will, in effect, that is pregnancy2. This be placed into the uterus of be the biological mother of misogynistic view employed a n o t h e r w o m a n f o r the child. b y o n e o f t h e e a r l y gestation-this is known as f o r e f a t h e r s o f m o d e r n full surrogacy. This woman philosophy is, arguably, still acts as a surrogate; she an inherent part of modern carries the pregnancy until s o c i e t y . M a n y w o m e n birth with the intention of b e l i e v e t h a t b e a r i n g returning the baby to the children is an integral part c o m m i s s i o n i n g c o u p l e . of womanhood and at times Alternatively, the surrogate men may view women as m a y u n d e r g o p a r t i a l baby-making machines3. If s u r r o g a c y w h e r e s h e Surrogacy provides a solution for couples that are unable to have children. The current laws governing surrogacy have been ridiculed 2 for failing to address some of the key issues that arise and, as a direct result, there is a growing demand for social

reform. A recent statement made by Stephanie M. Caballero (Pictured right) stated that the statutory regulation of surrogacy is somehow inadequate in safeguarding those who are genuine victims of childlessness. In my opinion, this is a valid scrutiny of current British law. In this article, I will critically evaluate the weight of this statement by analysing the

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

f o l l o w i n g a r e a s : N o n - already been born due to a n o t l e g a l l y b i n d i n g a n d e n f o r c e a b i l i t y a n d l e g a l surrogacy arrangement, Latey prosecution may not be taken p a r e n t h o o d , p r o c r e a t i v e LJ affirmed that All that against those who refuse to autonomy and the outsourcing matters is what is best for her fulfill their agreements. This 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 now that she is here. This case laissez-faire approach does set the precedent for how l i t t l e t o p r o t e c t t h e surrogacy arrangements are c o m m i s s i o n i n g c o u p l e , viewed in the courts in that it particularly if all alternative would rarely be justifiable to forms of assisted reproduction order the surrogate, by law, to s u c h a s I V F , h a v e b e e n r e t u r n t h e b a b y t o t h e exhausted. commissioning couple.

ridiculed3 in the 1984 Warnock The Human Fertilisation and report. Perhaps, this prima E m b r y o l o g y A c t 1 9 9 0 facie repugnance to surrogacy introduced section 1B into the s t e m s f r o m t h e c o m m o n Surrogacy Arrangements Act i m p l e m e n t a t i o n o f t h i s 1985 which states that: No technique in rearing cows as surrogacy arrangement is alluded to by Cumming Bruce enforceable by or against any of
2 LJ when he likened it to a the persons making it . Thus,

baby farming operation2. In Re C (A Minor) (Wardship: Surrogacy)3 the baby cotton case- regarding a baby who had

surrogacy arrangements themselves are not illegal per se3 but any arrangements made by the participating parties are

Hyderabad Surrogacy Clinic Hyderabad Fertility Clinic in India uses advanced IVF technology to grant prospective parents a biological child.

In 1984, the Warnock report was carrying or has carried a child is the published by a committee to give legal mother of the child: guidance on rapidly advancing IVF technology and the practice of surrogacy. The report has been widely influential in the formation of the Human Fertilisation and Embryology Act [HFEA] 1990, however, its 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

recommendations regarding surrogacy This would mean that a gestational have not been completely implemented. surrogate 7 reserves the right to The committee overtly stated: We recommend that it be provided by statute that all surrogacy agreements are illegal contracts.2 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

One can easily see the dangers of must either undergo an invasive implementing such an uncompromising process to adopt that child8 or apply for strategy as it may force the emergence a parental order under section 30 of the of an underground trade3 particularly HFEA [1990]9. as fertility rates have been on a steadily decline in 20-25 year olds4. In regards to paternity, under section 28 of the HFEA (1990) and section 38 of

Interest in surrogacy was reinstated in the HFEA (2008) the surrogates 1 9 9 8 w h e n t h e g o v e r n m e n t husband or civil partner is deemed as commissioned a report from the Brazier the legal father unless he did not committee2, which like the Warnock consent to her treatment. Involuntarily, report, proposed that regulation of he may be assumed to consent if he surrogacy should not endorse its knew of her decision but, at the time, practice3. Interestingly, the minister of did not object. In Re G2 it was initially public health at the time, Tessa Jowell, thought that the surrogate mothers s p e c i f i e d t h a t e n f o r c e a b i l i t y o f estranged husband, who resided in contracts was not to be on the agenda Spain, was the legal father as there of the Brazier report4. This is rather was no sufficient evidence to show his surprising as it is undoubtedly a objection to her treatment. However, fundamental part of Jowells initial due to his estrangement he was unable reason for obtaining a report, namely to give his consent to the granting of a to ensure that the law continued to parental order.This case was proven to meet public concerns5 Section 33 of the HFEA (2008) outlines unambiguously that the woman who is be particularly difficult as the commissioning couple resided in Turkey, but a prerequisite of a parental order is that one of the parents must be domiciled

Octavia and Dominic Orchard (Pictured below) travelled to the Hyderabad clinic to get around a UK ban on commercial surrogacy.

Daily Mail , Sept 2012

Defining Parentage in Surrogacy

Who is the rightful mother?

in the UK, a need that was also expressed by adoption has been completed. For a parental the Brazier committee2 where they discussed a order to be successful, the surrogate must agree hypothetical surrogacy act which would ensue unconditionally to the making of the order as a code of practice that organizations such as well as the surrogates partner if he has been 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 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 consenting4. In both scenarios, the commissioning couples are powerless and rely

on the surrogate parents to agree to the and the commissioning mother (who was also 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 incurred4. 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. 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 childs 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

Parenthood may be defined by either of the the basis of causality, as the gestational mother following perspectives: genetics, intention, is also a causal agent namely through the gestation, or causality2. If one employs the implantation of the embryo into the uterine lockean notion of self-ownership3 then it could wall. 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 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.

biological proprietary claim made by parents. In the more contemporary case CW v NT2, the Additionally, this point disregards the commissioning couple sought to obtain a essentiality of the placenta and other residence order under the Children Act 1989 as extraembryonic membranes, which provide the surrogate decided to keep the baby that she nutrition and protection to the foetus and are had agreed to hand over. The application was entirely derived from the gestational mother. refused on the basis that the baby had a good Our perception of heritability does not account attachment with the mother and was thriving in for the fact that children also exogenously her care. Here, Baker J affirmed that the inherit religious beliefs, customs, habits and primary consideration was what would be in the personality traits. In Johnson v Calvert2, the California Supreme babys welfare and, considering this, concluded that removing the baby from the mother would be unjust.

Court declared that both the gestational mother

Procreative Liberty
Knowing your rights

A human right to procreate involves an obligation on others not to limit a persons liberty to decide when and It is typically a sacrosanct principle how many children he will have that there is a right to private and Michael Bayles family life2. Moreover, whilst there is a right to life3 there is no legal right to create new life. An important question and become legal parents through is ultimately whether we consider surrogacy. Perhaps, this is due to the childlessness to be a type of pathology general consensus that a right to and hence an area of public interest motherhood and fatherhood exists. 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 If we subscribe to forms of a natural rights theory, particularly the notion that rights are intrinsic by virtue of their being Gods 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

Is there a right to Procreative autonomy?

Pushing Boundaries Kate Georgeman has a child at the age of 56 with the help of a much younger surrogate mother.

Outsourcing Wombs

The booming Surrogacy Industry In India

overturn an individuals article 8 medical feat of surrogacy rather than rights, as it is merely a qualified right its utility and cultural significance. and not an absolute right. John Robertson defends the right to
Outsourcing of pregnancyExploitation or philanthropy?

procreative liberty and asserts that it is The vociferous opponent of surrogacy inextricably linked to autonomous arrangements, Mary Warnock, in the parental choices2. Perhaps though, part 1984 Warnock report wrote: 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 It is therefore with the commercial exploitation of surrogacy that we have been primarily, but by no means exclusively, concerned.5

ideology, allowing people to control To suggest that surrogacy is somewhat whether their offspring have particular exploitative requires, in my opinion, traits, initiating a kind of bottom-up3 rigorous validation, which the Warnock eugenics. The process of 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, birth4, 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 womens 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 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 implanted into the successful

Persons are exploited if others secure a benet by using them as a candidates. Interestingly, there is a tool or resource so as to cause contractual agreement, which under them serious harm.
Indian law, specifies that the surrogate must return the baby to the commissioning couple after giving birth. Some would regard this arrangement to be exploitative, partly because monetary payments are even lower than in the developed world and cases of poverty. It has been said that: To exploit a person involves the harmful, merely instrumental utilization of him or his capacities, for ones own advantage or for the sake of ones own ends2. Munzer, 1990 could also be argued that exploitation only exists when the advantage received is incommensurate with the price paid3.

the women are often living in extreme 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, although the benefits of the arrangement are shared, the exploitation itself is asymmetric. On

This definition would support the view the one hand, Hill postulates2 that that surrogacy is, by its very nature, exploitation is psychological rather exploitative. Yet, in saying that, it than being an economic or social

Outsourcing Wombs Pictures taken at Hyderabad clinic, where thousands of Westerners ock to pursue surrogacy options.

concept. He states that exploitation must take social attitudes negate previous assertions that advantage of some recognised psychological surrogacy is prima facie unlawful implying that vulnerability which, in turn, disturbs the the relevant laws are somewhat outdated. Some offerees ability to reason effectively. Most have argued on religious grounds that surrogacy notably, this resonates with the current itself is unnatural3 and against the will of God. surrogacy pacts that are made in India. The Conceptually, it could be said however that money that Indian surrogates receive is equal to Mary, the mother of Jesus, was acting as a 15 years of wages and enables many of them to surrogate, in that she never engaged in any buy a house, ameliorating some of the daily sexual activity but conceived and gave birth to a turmoil of poverty. Perhaps, this incentive child. 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. 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, Conclusion Carole Horlock, underwent full surrogacy for a commissioning couple, giving birth to a healthy

Mason and smith purport that the judicial baby boy. It was not until a few months later procedure is derived from the fait accompli that the couple discovered, through a DNA test, with little compassion for those involved2. that the baby was not theirs biologically but was Personally, I am of the view that the statement the child of the surrogate and her husband. This raises a valid claim that the needs of further exemplifies the disastrous outcomes c o m m i s s i o n i n g c o u p l e s a r e n o t s e r v e d faced by not having a supervisory mechanism to 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 closely monitor these arrangements which may marginalisation and inequality as mothers who ultimaltely lead to the detriment of the are poor or who have no family ties are less commissioning couple and the child. likely to have access to willing surrogates. Possibly, the reason for the monistic legal Author: Jamal Ross definition of maternity is that it is a practical Meddebate 2013 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

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