International and UK regulations have simply not kept up with the reality of surrogacy.
Determining parenthood is a complex business. When paternity tests revealed that the child Stephen Quinn had raised as his own was in fact the biological offspring of David Blunkett, Quinn attracted palpable sympathy with his declaration: "I will not draw a distinction between biological and non-biological – we are not buying Persil or Daz."
But the complexity of determining paternity pales in comparison to the question of maternity. In the rapidly expanding world of surrogacy births, up to three women can have competing claims to be mother of a newborn child: the birth mother, the egg donor, and the intended parent (or "commissioning mother", as she is prosaically called). The one thing upon which the wildly opposed different groups agree is the fact that the courts – increasingly called on when surrogacy agreements break down – do not have the right tools to resolve them.
The most recent example came in a surrogacy dispute that was decided last month in Birmingham county court. A couple who could not have children had met a surrogate mother in an internet chatroom. She was inseminated with the man's sperm and agreed to hand over the child after birth. In a not uncommon outcome for informal surrogacy agreements, she changed her mind during the course of the pregnancy as her attachment to the child grew.
And in another fact not unrepresentative of wider trends, the case was complicated by the fact that both the would-be parents and the surrogate were avid users of surrogacy websites and chat-rooms. The would-be parents had met another woman, alleged to be a prostitute, on a surrogacy website and allowed her to stay in their home. On her part, the surrogate had adopted a false persona online and deceived the couple to elicit information about them. Both incidents, the judge said, raised questions about the sound judgment of each side, a particular matter of concern for a court trying to determine which side would be more likely to provide the atmosphere of safety, love and guidance needed to raise a child.
It's hard to criticise the findings of the judge, Sir Jonathan Baker, in this case: he allowed the child to stay with the surrogate, finding separation from the woman who was still breastfeeding her to be the greater measure of harm. His view reflects the legal position in the UK, that "mother" is the label given to any woman who gives birth to a child, whether or not she is a genetic relation.
But the difficulty with even naming this woman is some indication of the problem that the law – and society – has with accepting the concept of surrogacy. Women who intend to end up with custody of a child conceived through surrogacy are sometimes called the "intended mother", or the "commissioning woman". When Nicole Kidman spoke of her newborn surrogate child, she referred to the woman as her "gestational carrier", a term that did little to improve surrogacy's public image.
Surrogacy is fighting an ethical battle on numerous fronts. Religious communities are mostly opposed to it. A more earthly concern held by many is with the increasing commercialisation and potential exploitation of surrogate mothers. Commercial payments are illegal in the UK, for good reason – surrogacy in India is reported to be at least a $2bn business, with vulnerable women being handled by agents who take the majority of fees paid by relatively wealthy foreign couples. In the US, where many states also allow payments for surrogacy, it is not uncommon for tens of thousands of dollars to be paid to women for both egg donation and surrogacy, something many UK experts regard as nothing short of the commoditisation of human life.
That is not to say that UK law has got it right. The 1990 Human Fertilisation and Embryology Act, which governs parenthood rules arising from surrogacy – with minor amendments in 2008 to include unmarried or same-sex couples – can be difficult to apply to the reality of modern surrogacy. In stark contrast with adoption, which requires the thorough – often painfully slow – vetting of parents, anyone can enter into a surrogacy arrangement abroad. Many people, including the lawyers I speak to who represent families facing the breakdown of such arrangements, struggle with the uncomfortable question of whether it can ever be in the best interests of a child to be conceived for the purpose of being removed from the woman who gave birth to that child, and what the long-term psychological and emotional consequences of that removal might be.
Yet automatic recognition of the surrogate as the legal mother can cause its own problems in the context of international surrogacy agreements. In 2008 a British couple who had paid £23,000 to a surrogate mother who bore them twins in Ukraine were at first unable to bring the children back to the UK, since they were not recognised as the legal parents. The parents won their legal battle after a year, but until then the twins were left "marooned, stateless and parentless", eliciting a warning from a high court judge that the law should be changed.
On the other hand, giving automatic recognition to the commissioning parents – a model adopted by India's new surrogacy law – creates dilemmas too. The idea of a contract that creates a binding obligation on surrogate mothers to relinquish all rights to a child after birth may seem several steps too far.
It is fair to say that most cases do not end in dispute. But even in those circumstances, the law has failed so far to provide a sensible balance between the rights of surrogate mothers and the women for whom they carry a baby. Currently only the former enjoy maternity rights and employment protection.
The net effect is that children are left vulnerable – a sad and ironic situation for a practice that already often stands accused of being in the interests of parents rather than the offspring they go to such lengths to create. As the judges on whom it falls to resolve these issues state with increasing concern, surrogacy – through lucrative international deals and burgeoning chatrooms – is here to stay. If the children it creates are to be protected, then change is long past its due date.
Article: 9th February 2011 www.guardian.co.uk
Read more about a surrogacy and egg donation at www.prideangel.com