Assisted Reproduction and Surrogacy: A Modern Approach to Parenthood or Brave New World?
Organised by 7 Bedford Row Chambers
7 Bedford Row, London WC1R 4BS, UK
Thursday 1 March 2012
Hosted by 7 Bedford Row chambers, this intellectually stimulating event highlighted the uncertainty and lack of consensus around surrogacy law. However, such was the emphasis on surrogacy the event title was never formally answered. Yet I nevertheless came away with the feeling that some key issues in surrogacy, applicable to the wider agenda of assisted reproduction, were thoroughly explored. Moreover, it established some momentum to press for law reform in the area.
The event, chaired by Mr Justice Hedley - a family law judge who has presided over many of the key cases developing the jurisprudence in surrogacy law - boasted an impressive line up of speakers and panellists.
Mr Justice Hedley opened by saying the current legal framework consisted of an 'extremely fragile area of first instance decisions', adding: 'Who knows what the Court of Appeal or Supreme Court would do if they got their hands on the issue?' This highlights how, on the one hand, there is a need for greater legal certainty in meeting the increasing complexity of situations fertility treatment and surrogacy can lead to, and, on the other, retaining its sensitivity to each individual case. While I believe the judiciary has dealt with the cases in a largely well-reasoned and pragmatic manner, it was raised in discussion why Parliament has not yet fully grappled with the issue.
Fertility lawyer Ms Natalie Gamble, of Natalie Gamble & Associates, started the evening on its critical theme. She acknowledged Britain as world leader in same-sex legal parenthood and the development in the law on donation, but she said there still is a need to look at shortfalls in many areas.
First, Gamble pointed out shortcomings in UK policy both in domestic and international surrogacy arrangements. Second, she called for a rational debate about payment and enforceability. Finally, Gamble advocated the need to establish an international consensus or at least to work towards one, and she warned against simply copying the legislation for international adoption.
The overriding message I took away from Gamble's presentation was that surrogacy and fertility treatment for the majority of people is a happy affair, with many mothers and surrogates becoming lifelong friends. Next was Miss Barbara Connolly QC, a barrister specialising in child and family law at 7 Bedford Row. While agreeing that there are plenty of surrogacy and fertility agreements which do end harmoniously, she pointed out that when things go wrong - they can go very wrong. Commissioning parents, surrogates, donors and even countries can find themselves in a range of difficulties through the increasingly accessible, global and commercial world of surrogacy and fertility treatment.
Connolly's conclusions seem to indicate the need for greater regulation of commissioning parents and surrogates, to moving away from a system of retrospective authorisation of surrogacy agreements to that based on the South African approach of pre-conception approval by a court. The benefit of this system is that only in the clearest cases of the abuse of public policy would the courts be able to withhold a parental order from the commissioning parents
The South African system allows for the agreement and parties to be vetted before conception and sets out clearly what all the parties involved agree from the outset. It may not prevent future disputes from arising entirely, but it would make them fewer and further between - and possibly far easier to deal with. Gamble, however, in response to this point, raised the question that to scrutinise and vet people going through surrogacy arrangements may discriminate against those affected by infertility. There is no such scrutiny before fertile people can conceive.
The final presentation was from Ms Anne-Marie Hutchinson OBE, partner at Dawson Cornwell - a law firm specialising in surrogacy with an international element, which was the main focus of her presentation. There are currently no international conventions governing international surrogacy or assisted conception, and current adoption conventions cannot apply. Hutchinson believes a framework for the increasing number of international agreements needs to be developed to set minimum standards for agencies and state authorities.
Ms Sarah Norcross, director of the Progress Educational Trust and commissioning editor of BioNews, Ms Melanie Carew, a Cafcass officer and solicitor advocate, and barrister Ms Anita Guha, also at 7 Bedford Row with experience in cross-border movement of children and overseas surrogacy took part in a panel discussion. This focussed on practical considerations in obtaining effective consent from surrogates in international cases.
Carew provided an interesting statistics as to the rising number of cases with an international element. In 2002 there were 44 cases in the UK courts, which rose to 109 in 2010/2011. This figure is rapidly growing - in the first three months of 2012 there were already 82 cases around international surrogacy.
Gamble and Norcross talked about the need for change in surrogacy policy. In particular, Norcross lamented the lack of political appetite for change and stressed the need for influential people like those in the audience to call for change.
The event flagged up so many different ways in which surrogacy arrangements can go wrong that there was no time to answer the question the event posed. I was not surprised given that there was so much uncertainty and such a lack of consensus in the audience.