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PETBioNewsCommentShould surrogate mothers still have an absolute right to change their minds?

BioNews

Should surrogate mothers still have an absolute right to change their minds?

Published 19 October 2012 posted in Comment and appears in BioNews 678

Author

Natalie Gamble

Image by Dr Christina Weis. © Christina Weis
Image by Dr Christina Weis. © Christina Weis

Consent requirements for surrogacy were created in 1990 and sought to discourage surrogacy, to make it a perilous undertaking that few would brave. With more experience behind us, we now know that surrogacy is not something to be quite so afraid of...

D and L (surrogacy) 2012 (1, and reported in BioNews 676) is the first ever UK case to award parenthood to the
intended parents without the consent of their surrogate mother. Extensive
efforts to find the unmarried surrogate mother, who had disappeared in India,
failed, and this gave Mr Justice Baker the power to make a parental order
without her consent.
However, had the surrogate (or her husband, had she
had one) refused to give consent, the outcome would have been very different. Surrogacy
law in the UK makes the woman who gives birth and her husband or civil partner
the legal parents of the child. This is irrespective of genetic parenthood or
where in the world they live.

The intended parents may apply to the family court for
a parental order within the six months after the birth, and the birth parents
then give up their status. The birth parents must give full, free and
unconditional consent, and this cannot be given before six weeks after the
birth. The only limited exception is where the surrogate cannot be found or is
incapable of giving consent.

If consent is refused, this means that a parental
order is quite simply not available to the intended parents, even if they are
the biological parents and caring for the child. They can apply for a residence
order instead (adoption is not, as is commonly believed, an easy alternative),
but this only gives limited decision-making rights during childhood and does
not fully reassign parentage.

I have heard High Court judges criticise the 'absolute
veto' that applies to parental orders, and express concern about the fact that,
even if the surrogate or her husband or civil partner refuse consent for
malicious reasons such as blackmail or extortion, the court does not have the
flexibility to make an order which is clearly in the child's best interests. The
position is unique in UK family law, with surrogate mothers given an
unchallengeable position beyond even that of birth mothers of children being
adopted.

So why is the law so inflexible?

The consent requirements were created in 1990 at a
time when surrogacy was still in its infancy, and it was assumed that frequently birth
mothers would bond with the baby and refuse to hand the child over. The
law sought to discourage surrogacy, to make it a perilous undertaking that few
would brave.

But with more experience behind us, we now know that
surrogacy is not something to be quite so afraid of. The fear that many
surrogacy situations would end in custody disputes has not been realised. Over
the past 20 years, we have seen nearly 1,000 parental orders granted in the UK,
with only two reported cases of the surrogate seeking to keep the baby. In one,
the court gave residence to the intended parents (2); in the other, the
surrogate mother (3) - both decisions were made on a best interests basis given
the particular facts. As someone who has dealt professionally with surrogacy
for many years, my experience is that surrogacy arrangements go wrong
incredibly rarely.

I understand why people would assume that surrogacy
arrangements are likely to end in problems. The process of pregnancy and birth
for the vast majority of us is one of bonding with our own child, and that is a
profound and significant experience. But what is easy to miss is that most
surrogate mothers have a very different perspective.

I have heard an experienced surrogate mother asked how
she dealt with handover at birth: wasn't it a difficult, emotional process? 'No',
she explained, 'it's not difficult at all, it's the best bit - I see the
parents, who are now my friends, turn into jelly in front of me because I have
helped them go from being a childless couple to being a family'. There is
something a little condescending, even Victorian, about the law's presumption
that a woman cannot make an informed rational decision to carry a child for
someone else, and to bear the consequences of that decision.

The world of surrogacy has also changed significantly
over the past 20 years. The growth of IVF has meant that more surrogacy
arrangements are now gestational rather than traditional. I do not wish to give
a view as to whether a lack of biological connection makes it less likely that
the surrogate will change her mind, or as to whether we would have a different
perspective on the position if she did, but they are factors to consider. We
also now have more British parents entering into international surrogacy
arrangements in jurisdictions where the surrogate is not regarded as the legal
mother. Surrogates are often surprised (and worried) to find out that they have
legal responsibilities in the UK.

And let's not forget that the imbalance of the
law is to the detriment of surrogates too, and their husbands (and now civil
partners as well), who are burdened with all the responsibilities of legal
parenthood for a child they do not consider theirs. Surrogates worry about being
left, quite literally, holding the baby. The current law also lets surrogates
down by failing to hold commissioning parents in any way responsible for the
life they have created.

Yes, we must honour and respect the crucial and
emotionally significant role a surrogate mother plays in carrying and giving
birth to a child, whether she is based in the UK or abroad. The point is that,
amid an almost hysterical desire to ensure her protection, we have got the
wider balance wrong.

The law at present gives one side in a surrogacy
arrangement a unique and special legal status which overrides the interests of
everyone else involved, utterly irrespective of the circumstances. Where the
surrogacy arrangement runs according to plan, this works to everyone's
detriment, leaving the parents without any parental responsibilities, the
surrogate with responsibilities she does not want, and the child in limbo for
far too long. Where things go wrong - which fortunately happens very rarely -
the courts' hands are tied; they can assign care flexibly, but not parenthood,
and this has serious long term implications for the child.

It
is time for us to take a more sophisticated approach to surrogacy, one which accepts
that surrogacy arrangements are far more likely to have happy outcomes than problematic
ones; an approach which recognises, alongside
the surrogate's status, the rights and responsibilities of the biological
parents who entered into the arrangement. Most importantly, we need to ensure the welfare
of the child.

Related Articles

Image by Dr Christina Weis. © Christina Weis
Image by Dr Christina Weis. © Christina Weis
News
7 November 2016 • 3 minutes read

Surrogate refuses to give consent for parental order

by Dr Antony Starza-Allen

A surrogate has refused to give her consent for the parents of twins to become the children's legal parents, even though she and her husband are not seeking any active involvement in the children's upbringing...

Image by Dr Christina Weis. © Christina Weis
Image by Dr Christina Weis. © Christina Weis
Reviews
7 October 2013 • 6 minutes read

TV Review: House of Surrogates

by Dr Kirsty Horsey

I'm not sure how a television documentary manages to be saddening, heartwarming, uplifting and worrying all at the same time. BBC Four's House of Surrogates, which focused on one provider of paid-for surrogacy in India, where all the women acting as surrogates for one Gujarati clinic spent 'their pregnancy away from home in dorms', managed it...

Image by Dr Christina Weis. © Christina Weis
Image by Dr Christina Weis. © Christina Weis
Comment
19 March 2013 • 3 minutes read

Lies, damned lies and surrogacy

by Richard Adams

What is the law to do when people deceive each other about their intentions as parents? In what is thought to have been the first case of its kind, the UK's High Court in G v G [2012] has rejected a father's application to reverse an order transferring legal parenthood of a child from a surrogate to his wife...

Image by Dr Christina Weis. © Christina Weis
Image by Dr Christina Weis. © Christina Weis
Comment
5 March 2013 • 5 minutes read

The Indian surrogacy industry — and why we need to reform UK surrogacy law

by Natalie Gamble

Indian surrogacy is a hot media topic, with several stories over the past week about couples being stuck in India waiting for British passports for their biological children. As far as we are concerned, this isn't really news — it is the shared experience of every British parent who has had a child through surrogacy in India, and something we deal with on a daily basis....

Image by Alan Handyside via the Wellcome Collection. Depicts a human egg soon after fertilisation, with the two parental pronuclei clearly visible.
CC0 1.0
Image by Alan Handyside via the Wellcome Collection. Depicts a human egg soon after fertilisation, with the two parental pronuclei clearly visible.
News
5 March 2013 • 2 minutes read

Britons paying up to £25,000 for Indian surrogate babies

by Jess Ware

Around half of the 2,000 babies born to surrogate mothers in India last year may have gone to British parents, an investigation by the Sunday Telegraph has revealed....

Image by Dr Christina Weis. © Christina Weis
Image by Dr Christina Weis. © Christina Weis
News
26 October 2012 • 2 minutes read

New Jersey Supreme Court deadlocked over maternal status in surrogacy

by Ruth Retassie

The New Jersey Supreme Court has failed to reach a majority verdict on whether a law that requires women to adopt a child born through surrogacy arrangements using donated eggs, to be considered the child's legal mother, discriminates against women affected by infertility....

Image by Dr Christina Weis. © Christina Weis
Image by Dr Christina Weis. © Christina Weis
News
5 October 2012 • 2 minutes read

UK High Court awards parenthood to male couple after Indian surrogate disappears

by Ruth Retassie

A male couple in the UK has been awarded legal parenthood over twins born through an Indian surrogacy arrangement without the consent of the mother....

Image by Dr Christina Weis. © Christina Weis
Image by Dr Christina Weis. © Christina Weis
News
24 September 2012 • 1 minute read

End of legal wrangle involving lesbian parents, private sperm donor and surrogate mother

by Tom Barrow

The High Court has awarded a lesbian couple sole custody rights for a child conceived using donor sperm and a surrogate's egg after a three-year battle over parenthood...

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