Surrogacy and the Inadequacy of the Current Law

24 Oct 2014

By Sue Breen, Consultant

Over the summer months ‘surrogacy’ has become a very topical issue, following the public furore that surrounded the case of ‘Baby Gammy’ – a twin with downs Syndrome, born to a surrogate mother in Thailand and allegedly rejected by the Australian couple who had sought the services of the surrogate. The commissioning parents and the twins’ birth mother had very different versions of the events surrounding the birth of the twins; whatever the truth, the result saw the twins being separated – destined to be brought up in different countries, many thousands of miles apart.

The professional view of those closely involved with surrogacy is that it is extremely unusual for arrangements to end so badly and very rare indeed for a surrogate to refuse to hand over a child, but when it does happen, the results for all concerned can be devastating.

A subject previously perceived as only affecting a minority of families has now become an issue which is discussed openly in the media and has been placed firmly on the party political agenda, with MPs increasingly finding couples seeking help and guidance on the matter. Jessica Lee, MP for Erewash in Derbyshire, has been instrumental in bringing this topic further into the public domain, most recently with a debate at Westminster Hall on the 14 October 2014. Ms Lee, a family law barrister, raised concerns over the current impracticality of the legal framework governing surrogacy, referring to the significant problems faced by couples seeking to secure parental responsibility for their children and the practical issues of gaining entry into the UK for children born abroad, in countries where commercial surrogacy is legal.

For a subject with the potential to ignite very strong feelings, the views aired in the chamber were balanced and collaborative, with the majority of MPs who spoke agreeing that the current legal framework needs to be reviewed.

It is estimated that there are between 1,000 – 2000,000 surrogacies each year, although the official figures are unknown as many parents enter into informal agreements and never secure parental responsibility for their children. That number has increased significantly in the last few years. Ms Lee not only highlighted the limitations with our own legislative framework and the fact that commercial surrogacy is outlawed in the UK, but also referred to the lack of an overarching international framework. With commercial surrogacy not allowed in the UK, families are increasingly looking to other countries to secure a suitable surrogate, and then are faced with a legal and bureaucratic nightmare when bringing their children home.

This particular issue was highlighted by Richard Harrington, MP for Watford, who spoke empathetically of the plight of two of his constituents and their child, born to a surrogate mother in India, who were left with no option but to live in a hotel for many months whilst passport issues were being resolved.

The changes being proposed by Ms Lea include:

  • New legislation to update current surrogacy laws
  • Legal agreements for those entering into surrogacy arrangements
  • Developing an international legal framework
  • A code of practice to protect prospective parents and surrogates
  • Pre-birth orders – Allowing commissioning parents to be recognised on birth certificates through the immediate transfer of ‘parental rights’ (currently rights remain with the surrogate and not the commissioning parents)
  • Payments to surrogates to be transparent and subject to regulation
  • Removal of the current six month time limit that parents have in order to apply for parental responsibility.

With the introduction of the Same Sex Marriage Act, many couples will be looking at surrogacy as a way to start their family; therefore, the time has surely come for a comprehensive overhaul of the law to ensure UK legislation can better support the modern society in which we live.

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