In the UK, surrogacy contracts, i.e. a contract providing for the surrogate mother to give the child or children she is carrying to the commissioning parents, are unenforceable. If the surrogate mother changes her mind, even if she has no biological connection with the child, she retains all the legal rights and duties in relation to them, rather than the commissioning parents.
Most surrogacies run smoothly but undeniably, can result in heartbreak if there is a change of heart by the surrogate mother or the intended parents. This is one of the main reasons why commissioning parents look overseas to jurisdictions where surrogacy contracts are enforceable as in, for example, some states in the US.
As with all things human however, there are no guarantees and contracts can be a very bad way of trying to achieve formality and certainty in human relationships. Witness the slow and chequered progress of prenuptial contracts which are still not 100% enforceable in this country either.
At the other end of the surrogacy spectrum, recent reports from the US suggest that the consequences of enforcing surrogacy contracts can cause corresponding distress for all concerned, but for the surrogate mother in particular. In California, a surrogate mother is reportedly fighting for custody for one of the triplets she is carrying, after coming under great pressure to abort the third child as it emerged that the intended parent may not have the financial means to support his existing obligations, plus the cost of raising the children.
So where does the balance lie? Should the biological link be determinative? The report “Surrogacy in the UK – Myth Busting and Reform; Report of the Surrogacy UK Working Group on Surrogacy Law Reform”, published in November 2015, recommends a change to the law whereby the making of a parental order, passing legal parentage to the commissioning parents, would be preauthorised to take effect at birth – quite a change. In many European countries surrogacy is banned, for example, France. We certainly need to overhaul our surrogacy laws which have not been revised substantively for the last thirty years. Maybe balance itself is what is required, having regard to the biological link with reliance on the paramountcy principle, as enshrined in English law, whereby the principle that the welfare of the child is paramount, will be the final arbiter.