Following new UK government guidelines on surrogacy published last month aimed at improving the rights of surrogacy patients, Ministers are now facing a new legal challenge calling for further changes in the law.
Specialist fertility law firm, Gamble and Ghevaert, have written to Ministers demanding that the current rules, which prevent women who use surrogates from receiving maternity benefits, be changed. At present, only women who themselves go through a successful pregnancy are entitled to paid maternity leave and employment protection - even in cases where they are not the genetic parent. Thus, surrogate mothers are entitled to all maternity benefits. However, no such rights are available for parents who use a surrogate or adopt, leading campaigners to describe the current position as discriminatory.
Natalie Gamble, partner at Gamble and Ghevaert, explained the situation thus: 'The lack of right to maternity leave is tied up with the fact the surrogate mother is regarded as the mother…In any other circumstances you would get maternity leave. Women aren't going to need a whole year. What would make sense is a system where you have some sort of sharing arrangement [for maternity leave]'. She continued, 'We also need to take account of our modern human rights and anti-discrimination laws which do not allow unfair treatment of minority groups, however small they are'. At present, approximately 40 babies are born through surrogacy in Britain each year, mainly due to medical reasons which prevent some women from giving birth themselves.
Surrogacy in Britain is laden with problems. Surrogates in Britain may not receive payment for the service they render, apart from expenses. Furthermore, surrogacy agreements are not legally binding, meaning the surrogate mother has the right to keep the baby she gives birth to, even if the child is not genetically related to her, and she has been paid all expenses. These restrictions have led to couples going overseas to carry through a surrogacy arrangement. However this can also present difficulties; the worst case scenario is that a much-wanted baby is recognised in neither Britain, nor the country of it's birth.
Sharmy Beaumont, aged 33, is one of the few UK women who has become a parent with the help of a surrogate. Beaumont was born with a rare condition which meant her womb could not cope with carrying a child. After learning of this in her twenties, Beaumont contacted Surrogacy UK and was put in touch with her surrogate, Liz Stringer. After a successful surrogate pregnancy and the birth of her baby daughter, Isabelle, Beaumont was forced to take unpaid leave in order to care for her.
She says, 'My work have been understanding and have allowed me some leave to look after Isabelle…However, the fact that parents through surrogacy are not entitled to any maternity benefits to spend time with their babies is unfair and the Government has not recognised this'.
'I love being a mum,' Beaumont concludes, 'but the system is unfair'.