Inadequate legislation coupled with a lack of international legislative consistency or cooperation between jurisdictions breeds uncertainty.
- While recent judgments (such as those in A & B and Re B v C (Surrogacy: Adoption)) are welcome, they only serve to highlight the extent to which the courts are being forced creatively to interpret the legislation in order to ensure that justice is done.
Surrogacy is an increasingly popular alternative to highly expensive fertility treatments and adoption. The domestic legislation that governs the practice is outdated however, and not fit for purpose. Moreover, its interaction with the less restrictive regulatory regimes that exist in other jurisdictions compounds the problem and makes reform an urgent necessity.
It has been estimated that as many as 2,000 children a year are born to surrogate mothers, mostly abroad, before being handed to British commissioning parents. Last year, however, according to Cafcass, only 241 applications were made for parental orders. This gap is a real concern in the light of Theis J’s extrajudicial warning at a recent conference that children born through surrogacy but without the protection of parental orders run the risk of becoming “stateless and parentless”.
HISTORICAL MORAL OBJECTIONS
The current legal position as regards surrogacy in England and Wales is rooted in historical concerns as to its ethicality. Baroness Warnock’s seminal 1984 report stated that “it is inconsistent with human dignity that a woman should use her uterus for financial profit and treat it as an incubator for someone else’s child” and highlighted the child’s “bonds with the carrying mother” and concerns that she could be exploited.
These concerns were enshrined in legislation the following year - surrogacy arrangements were made unenforceable and negotiating a commercial surrogacy arrangement became a criminal offence.
WHO’S LEFT HOLDING THE BABY?
Our law regards the surrogate mother as the mother of the child, irrespective of whether she is genetically related to it or where in the world the child was born or conceived (even if a foreign birth certificate refers to solely the commissioning parents and not the surrogate mother).
No international treaties or conventions exist concerning surrogacy, nor are there reciprocal arrangements between England and Wales and other jurisdictions. Until a court order alters her status, the surrogate mother is the one and only mother of the child (Human Fertilisation and Embryology Act 2008 (HFEA 2008), s 33(1)). A surrogate mother cannot be held to a surrogacy agreement if she changes her mind and decides to keep the baby, even if she has nothing to do with the child genetically.
The inherent uncertainty created by the unenforceability of surrogacy agreements is an understandable cause of concern for commissioning parents and surrogates alike. The widely reported story of Gammy, born to a Thai surrogate mother, whose Australian commissioning parents allegedly took his twin sister but left him when they discovered that he had Down’s syndrome, serves to illustrate the tensions involved.
But what happens when there is a disagreement? In H v S (Surrogacy Agreement)  EWFC 36, the court had to deal with cross applications regarding a child conceived following a disputed surrogacy arrangement between the birth mother and the father and his gay partner. The judge considered what would be in the best interests of the child, applying the welfare checklist enshrined in the Children Act 1989, and ordered that the child should live with the father and his partner.
Furthermore, legislative idiosyncrasies, stemming from outdated sociological assumptions, exist in respect of a commissioning father who has provided sperm. His status differs depending on whether the surrogate mother is married/in a civil partnership, or unmarried. If the surrogate mother is unmarried, the law treats the commissioning father as the father of the child, but if the surrogate mother is married or in a civil partnership the law (HFEA 2008, s 35) treats the surrogate mother’s husband/civil partner as the father of the child, “unless it can be shown that he did not consent”.
The recent case of Re B v C (Surrogacy: Adoption)  EWFC 17 provides perhaps the most bizarre example of the consequences of our law’s assumptions as regards a child’s parentage. A single man in his twenties (A) entered into an agreement whereby his sperm and an egg from a donor (B) was carried by a surrogate (C).
What makes this case potentially unique is that C, (the surrogate mother), was A’s own biological mother. When this arrangement was initiated, C was married to a man (D) who consented to this arrangement.
The child (E), is the biological child of A and B, but because of the aforementioned assumptions, is legally the child of C and D. Upon E’s birth, A did not have parental responsibility for the child, rather D did, because he was married to C and had consented to the pregnancy. If C and D were not married or if D had not consented, A would have been the legal father. E was A’s biological son, but, legally, his brother.
In fact, it was the very fact that A was E’s legal brother, and therefore a relative, that meant that the adoption order which the court ultimately made in A’s favour did not technically constitute a criminal offence (sections 92 and 93 Adoption and Children Act 2002).
The Human Fertilisation and Embryology Act 1990 introduced “parental orders” to address the status of a child born as a result of a surrogacy arrangement. The effect of a parental order is similar to that of an adoption order whereby the commissioning parents become the child’s legal parents to the surrogate mother’s exclusion. The applicant commissioning parents must prove a genetic link between at least one of them and the baby.
The following people may apply for parental orders (s 54(2) HFEA 2008)
- married couples;
- civil partners;
- persons living as partners in a family relationship (who are not within the prohibited degrees of relationship to each other).
A single person may not apply for a parental order, which is why A, in Re B v C above, had to apply for an adoption order instead. One might query why, given that single people are able to adopt, they are not also able to obtain parental orders pursuant to surrogacy arrangements.
THE SURROGATE MOTHER’S CONSENT
The surrogate mother, and her husband or civil partner if she has one, must have “freely, and with full understanding of what is involved, agreed unconditionally to the making of the order no earlier than six weeks after the child is born, unless it is deemed that they cannot be found” (ss 54(6) and (7), HFEA 2008).
In theory, the court must be satisfied that no money or other benefit (other than for expenses reasonably incurred) has been given or received by either of the applicants unless authorised by the court (s 54(8), HFEA 2008).
In practice, however, such payments are overlooked. In both Re A& B (Parental Order) Domicile  EWHC 426 (Fam), and D and L (Surrogacy)  EWHC 2631 (Fam), the court found that payments in excess of what could be deemed to be “reasonable expenses” were made to the surrogate mothers, in both cases in India, but made parental orders nonetheless on the basis that doing so was in the best interests of the children.
There are no reported cases in which the court has refused to make a parental order as a result of the scale of payment made to a surrogate mother.
WHEN DOES THE APPLICATION FOR A PARENTAL ORDER NEED TO BE MADE?
The answer to this question has changed dramatically as a result of the recent judgment in A & B  EWHC 911 (Fam) which effectively extended the legislative time limit of six months from the child’s birth (s 54(3), HFEA 2008) by over seven years. The commissioning parents lived in this jurisdiction but had two children in 2006 and 2009 with the same surrogate mother, pursuant to a surrogacy arrangement entered into in California. Californian court orders stated that the commissioning parents were the children’s legal parents and so they assumed there was no need to take legal advice in this jurisdiction.
The commissioning parents only learned that “their” children were not legally “theirs” - under our law they would be literally “parentless”, to use Theis J’s parlance, if the surrogate mother had died, or legally the children of a stranger even if she had not - when they read an article about international surrogacy in 2012.
The commissioning parents’ need to become legal parents was not merely a moral or psychological one. There are significant practical considerations, such as the children’s “inheritance, pension entitlement, financial support in the event of their parents’ separation and all other basic entitlements which flow from them having a legal parent-child relationship” (Russell J, paragraph 56).
The commissioning parents made an adoption application because they were advised of the apparently clear and non-extendable six month time limit. In this case the judge followed the controversial decision of Re X (A Child) (Surrogacy: Time Limit)  in which the President of the Family Division pushed creative judicial legislative interpretation to its limits in ignoring the time limit and making a parental order two years after the birth of the child stating, as regards the “nonsensical” restriction, “I assume that Parliament intended a sensible result”.
In A & B the children’s welfare was the court’s paramount concern and it made parental orders (in spite of the fact that they were not applied for) concluding that “only parental orders will fully recognise the children’s identity as the applicants’ natural children, rather than giving them the wholly artificial and, in their case, inappropriate status of adopted children” (paragraph 61).
Commissioning parents, like those in A & B, who enter into surrogacy arrangements abroad must take specialist legal advice as to the immigration status of the child. Children born in some countries, such as the US, will automatically be American citizens by virtue of this fact. Children born through surrogacy in other nations, such as Russia and India, are not automatically afforded a particular citizenship on birth and are therefore technically “stateless”.
Often British commissioning parents will have to stay in the country of the child’s birth while they apply for the child’s British passport. It is vital therefore that British commissioning parents take specialist advice, particularly if the genetically linked applicant does not have British citizenship from which the child may derive their own.
Some might say that we have it absolutely right. How could the law possibly justify forcibly removing a new-born baby from the breast of a woman who has nurtured it in her womb for nine months and given birth to it? How could we allow children to become commodities, or vulnerable women to be exploited, by permitting commercial surrogacy arrangements? There is undoubtedly logic and power in such emotive arguments, but they have served to justify and maintain a surrogacy regime that breeds uncertainty.
Moreover, the discord between our legislation and that of the less regulatory restrictive regimes in some other jurisdictions, to which British commissioning parents are understandably drawn, has forced the court into bending the rules to ensure that justice is done. The current law on parentage, based on outdated sociological assumptions, does not sit well with the increasing number of “alternative families” in the modern world. Regardless of your view of the ethics of surrogacy, reform is a necessity.
A TREATY ON INTERNATIONAL SURROGACY
In some countries, such as France and China, surrogacy is not legal and in others it is not regulated at all, but a treaty between those where it is both legal and regulated, providing for reciprocal recognition of parental orders and setting basic standards, would reduce uncertainty and the potential for exploitation of surrogate mothers.
The law should be reformed to allow enforceable, commercial surrogacy arrangements, but only in strictly regulated situations in which all parties have been adequately legally advised and psychologically assessed, as in California.
The commodification of children and the potential exploitation of vulnerable women is an appalling concept, but British commissioning parents are increasingly engaging in commercial arrangements abroad, forced away from the protection which our wider legal system would otherwise afford both them and surrogate mothers by the inadequacy of our surrogacy laws. It is already happening and we cannot pretend that it is not. The courts are having to bend the rules to breaking point to ensure that the welfare of the children is met.
In the meantime, however, commissioning parents, surrogate mothers, and those considering becoming either, must take specialist legal advice.
This article was published in New Law Journal in July 2015.