Still hazy after all these years: The law regulating surrogacy

Medical Law Review

Volumn 20, Issue 1, 2012, Pages 67-89

  Horsey, Kirsty ^a   Sheldon, Sally ^a  

^a UNIVERSITY OF KENT   (United Kingdom)

Author keywords

Assisted reproduction; Brazier review; Surrogacy

Indexed keywords

ADVISORY COMMITTEE; ARTICLE; FEMALE; HUMAN; INFERTILITY THERAPY; INTERNATIONAL COOPERATION; LEGAL ASPECT; MOTHER; PARENT; PREGNANCY; UNITED KINGDOM;

ADVISORY COMMITTEES; FEMALE; GREAT BRITAIN; HUMANS; INTERNATIONALITY; PARENTS; PREGNANCY; REPRODUCTIVE TECHNIQUES, ASSISTED; SURROGATE MOTHERS;

EID: 84857871567     PISSN: 09670742     EISSN: 14643790     Source Type: Journal    
DOI: 10.1093/medlaw/fwr039     Document Type: Article

References (104)

1. Surrogacy: Review for Health Ministers of Current Arrangements for Payments and Regulation, Report of the Review Team Cm 4068 (HMSO, London 1998), hereinafter, 'Brazier Review'. The three members of the Review Committee were Professors Margaret Brazier (Chair), Alastair Campbell, and Susan Golombok.
2. The incidence of surrogacy and attendant problems are unknown, but the COTS website notes that 98% of arrangements involving COTS members have been successful, with a milestone 500th birth achieved in 2004:, http://www.surrogacy.org.uk/FAQ4.htm. accessed 7 July 2011.
3. Genesis 16:1-16 and 30:1-25
4. A v C (1978) 8 Fam Law 170, [1985] FLR 445
5. Cotton was paid £6,500 for acting as a surrogate for a foreign couple, who had used an American commercial agency: Re C (A Minor) (Wardship: Surrogacy) [1985] 2 FLR 846; Mary-Beth Whitehead sparked controversy when she fled with the baby she had agreed to give birth to for a wealthy couple, crossing inter-state boundaries in the process: In the matter of Baby M (1988) 537 A 2d 1227
6. R Lee and D Morgan, Human Fertilisation and Embryology: Regulating the Reproductive Revolution (Blackstone Press, London 2001) 191
7. To take just one example: G Corea (ed), Man MadeWomen: How Reproductive Technologies Affect Women (Indiana University Press, Bloomington 1987). Here, and elsewhere, limitations of space mean that we are able only to give indicative references to the expansive literature regarding surrogacy.
8. Eg M Radin, 'Market Inaliability' (1987) 100 Harvard LR 1849
9. Especially A Dworkin, Right Wing Women (Women's Press, London 1983)
10. Eg ML Shanley, '"Surrogate Mothering" and Women's Freedom: A Critique of Contracts for Human Reproduction' in P Boling (ed), Expecting Trouble: Surrogacy, Fetal Abuse and New Reproductive Technologies (Westview Press, Oxford 1995) 156, 165
11. Eg R Macklin, 'Is There Anything Wrong With Surrogate Motherhood? An Ethical Analysis' (1988) 16 (1-2) Law Med Health Care 60
12. Eg Derek Morgan describes the practice as 'socially and ethically divisive because it does not attract universal opprobrium, because it may be seen, and is seen by some, as a natural and beneficial product of the reproduction revolution as much as an unnatural and abnormal artefact of it'
13. D Morgan 'Enigma Variations: Surrogacy, Rights and Procreative Tourism' in R Cook, S Day-Sclater and F Kaganas, Surrogate Motherhood: International Perspectives (Hart Publishing, Oxford 2003) 75
14. Committee of Inquiry into Human Fertilisation and Embryology, Report (Cmnd 9314, HMSO, London 1984)
15. A dissenting minority argued that facilitative regulation was necessary to protect the interests of all parties. See above n 13, Expression of Dissent: A. Surrogacy.
16. E Jackson, Regulating Reproduction: Law, Technology and Autonomy (Hart, Oxford 2001) 262
17. S 36, Human Fertilisation and Embryology Act 1990, inserting s 1A into the Surrogacy Arrangements Act 1985
18. [30S] Human Fertilisation and Embryology Act 1990 (now s 54 of the 2008 Act). We use the term 'surrogate' for the woman who gestates the pregnancy and 'intending parents' for those who enter into surrogacy arrangements with the intention of raising the resulting child. For consistency, we use this description also to apply after birth, to those who are now actively parenting a child conceived in this way.
19. Brazier Review, para 4.5, noting the existence of such acceptance 'across a wide spectrum of opinion'.
20. Eg, Brazier has elsewhere noted, with regard to the criminal prohibitions on commercial surrogacy put in place by the 1985 Act, that Warnock's recommendations were 'hastily and ham-fistedly hurried through Parliament': M Brazier, 'Regulating the Reproduction Business' (1999) 7 Med L Rev 169
21. Brazier Review, paras 1.6-1.13.
22. BMA, Changing Conceptions of Motherhood: The Practice of Surrogacy in Britain (BMA, London 1996)
23. Brazier Review, paras 1.8-1.12.
24. COTS suggested in its evidence to the Brazier Review that payments of £15,000 or more were being made by commissioning couples to surrogate mothers. Brazier Review, para 5.4.
25. Anon, 'Biological father to fight for custody of surrogate baby', http://news.bbc.co.uk/1/hi/uk/21009.stm. (accessed 7 October 2011).
26. Brazier Review, para 1.1.
27. S12, Human Fertilisation and Embryology Act 1990 (as amended) and s 5 of the Code of Practice (8th edn, 2009, revised April 2010)
28. See, http://www.surrogacy.org.uk/support2.htm. accessed 7 October 2011.
29. Although such organisations may charge 'membership fees' and accept donations. See also the text accompanying n 54.
30. M Freeman, 'Does Surrogacy Have a Future after Brazier?' (1999) 7 Med L Rev 1
31. Brazier Review, para 6.5.
32. http://www.surrogacyuk.org/Index.html. accessed 21 June 2011.
33. COTS claim a success rate of over 98%, with failures 'few and far between'. See G Dodd, 'Surrogacy and the Law in Britain: Users' Perspectives' in Cook and others, above n 12, 113.
34. EWHC 2814
35. S 30, the 1990 Act (now S 54, the 2008 Act)
36. COTS aims to provide help, advice, and support to surrogates and intended parents. It no longer accepts couples from outside the UK:, http://www.surrogacy.org.uk/About_COTS.html. accessed 12 July 2011. The court granted an application under s 84 of the Adoption & Children Act 2002, allowing the child to be adopted in Turkey.
37. S 59, the 2008 Act
38. House of Lords, House of Commons Joint Committee on the Human Tissue and Embryos (Draft) Bill, Vol 1: Report, Session 2006-2007, HL Paper 169-I, HC Paper 630-I (July 2007), para 44
39. See further M Fox, 'The Human Fertilisation and Embryology Act 2008: Tinkering at the Margins' (2009) 17(3) Feminist Legal Stud 333
40. See eg Re G, above n 49 and the further cases discussed at nn 79-83
41. Human Reproductive Technologies and the Law, Fifth Report of Session, 2004-2005, HC 7-1, paras 310-2
42. Department of Health, 'Review of the Human Fertilisation and Embryology Act: A Public Consultation' (2005) 7.17-7.19.
43. Joint Committee, above n 55, para 289
44. Eg E Blyth and C Potter, 'Paying for It? Surrogacy, Market Forces and Assisted Conception' in Cook and others, above n 14, 227-42
45. S 54(8), the 2008 Act
46. Brazier Review, para 5.1.
47. Emily Jackson points out that assumptions were made without supporting evidence, above n 19 at 284. Freeman has argued that Brazier's approach risked driving surrogacy underground: above n 39 at 10.
48. Brazier Review, para 5.14. However, see H Ragone, 'The Gift of Life: Surrogate Motherhood, Gamete Donation and Constructions of Altruism' in Cook and others (eds), above n 12 at 209, for empirical research suggesting that money is not the primary motivation.
49. However, the Reviewalso notes elsewhere that it had 'seen no evidence of such practices' (para 4.7).
50. Freeman, above n 39
51. Brazier Review, para 7.11.
52. Eg Re Adoption Application (Payment for Adoption) [1987] 3 WLR 31 (prior to the 1990 Act); Re Q (Parental Order) [1996] 1FLR 369, where Johnson J found that payments could be sanctioned retrospectively as long as they were 'reasonable' (at 374)
53. EWHC 3030. See also: Re C (Application by Mr and Mrs X under s 30 of the HFE Act 1990) [2002] EWHC 157.
54. At 24. Without a Parental Order, the children were at risk of being not just parentless but also stateless: see further below.
55. Re L (a minor) [2010] EWHC 3146 (Fam), at 3
56. The need to treat the child's welfare as paramount has since been confirmed in the Human Fertilisation and Embryology (Parental Orders) Regulations 2010
57. Natalie Gamble, cited in L Donnelly, 'Surrogacy: The Brave New World of Making Babies' Daily Telegraph 22 January 2011
58. Brazier Review, para 7.24.
59. See n 81
60. Human Fertilisation and Embryology Authority, 'Donating sperm and eggs: have your say', http://www.hfea.gov.uk/5605.html. (consultation closed April 2011).
61. 'HFEA agrees new policies to improve sperm and egg donation services' (19 October 2011), http://www.hfea.gov.uk/6700.html. (accessed 6 December 2011).
62. Brazier Review, para 1.3.
63. S 27, the 1990 Act
64. These provisions were completely rewritten in 2008 (see ss 33 and 35-7, the 2008 Act, respectively) but their spirit was nonetheless broadly retained: see J McCandless and S Sheldon, 'The Human Fertilisation and Embryology Act (2008) and the Tenacity of the Sexual Family Model' (2010) 73(2) MLR 175
65. EWHC 2814
66. S 28(2) of the 1990 Act, now s 35 of the 2008 Act. See further McCandless and Sheldon, above n 90.
67. See Evan Harris MP, HC Debs Cols 208-9 (10 June 2008)
68. S 54, the 2008 Act, replacing s 30, the 1990 Act
69. E Jackson, above n 19, 273-5
70. E Jackson, Medical Law: Text, Cases and Materials (2nd edn OUP, Oxford 2010) 838
71. See eg Re L [2010], above n 82
72. Brazier Review, para 7.24.
73. Ss 54(7) and 57(3), the 2008 Act, respectively
74. EWHC 3030 at 12
75. Ss 54(4) and 54(1), respectively
76. N Gamble, 'Why surrogacy law needs reviewing', http://www.nataliegambleassociates.com/page/surrogacy/39/. accessed 19 July 2011.
77. Since 2008, this includes all heterosexual and same sex couples, regardless of marriage or civil partnership status: s 54(2), the 2008 Act
78. HC Debs Col 210 (10 June 2008)
79. HC Debs Col 246-9 (10 June 2008)
80. Resulting in the removal of the requirement that clinicians consider the child's 'need for a father' when deciding who to treat under s 13(5) of the 1990 Act
81. See generally J McCandless and S Sheldon (2010) '"No Father Required"? The Welfare Assessment in the Human Fertilisation and Embryology Act' (2008) 18(3) Feminist Legal Stud 201
82. As tragically occurred in the case in A & anr v P & ors [2011] EWHC 1738 (Fam). The intending parents had applied for a Parental Order within the timeframe but the father died before it was granted.
83. See eg N Gamble, 'Crossing Borders for Surrogacy: the Problems for Families and Policymakers' 609 BioNews 31 May 2011
84. EWHC 921 (Fam)
85. See above n 52
86. India is the largest and fastest growing marketplace for surrogacy, where it is now reported to generate over £1.5 billion annually (Donnelly, above n 84).
87. As Hedley J notes: "[a]s babies become less available for adoption and given the withdrawal of donor confidentiality... more and more couples are likely to be tempted to follow the applicant's path to commercial surrogacy in those places where it is lawful'. Re X & Y (Foreign Surrogacy) [2008] EWHC 3030 (Fam) at 26.
88. N Gamble, 'Why Surrogacy Law Needs an Urgent Review' 455 BioNews 28 April 2008. Once a Parental Order is granted in the UK, if at least one of the intending couple is a British citizen, the child will equally be deemed so: para 8.7, Human Fertilisation and Embryology (Parental Orders) Regulations 2010 No. 985.
89. Gamble, above n 109
90. J Dolgin, 'The "Intent" of Reproduction: Reproductive Technologies and the Parent-Child Bond' (1994) 26(4) Connecticut Law Rev 1261, 1313
91. Eg the positive tone of Anon, 'Sisters make baby with three mums', http://news.bbc.co.uk/1/hi/health/4370804.stm. 18 January 2011.
92. Anon, 'Sir Elton John becomes father via surrogate' (28 December 2010), http://www.bbc.co.uk/news/entertainment-arts-12084650.
93. anon, 'Nicole Kidman announces baby born through surrogate', http://www.bbc.co.uk/news/entertainment-arts-12213615. 18 January 2011.
94. A v C (1978) 8 Fam Law 170; [1985] FLR 445
95. Re C (a minor) (Wardship; surrogacy) [1985] FLR 846; [1985] Fam Law 191
96. Warnock has since changed her views and accepted the case for regulation: M Warnock, Making Babies: Is There a Right to Have Children? (Oxford University Press, Oxford 2002) 92
97. Eg HL Debs Vol 698 Cols 471-3 (28 January 2008)
98. See generally, McCandless and Sheldon, above n 90
99. Department of Health, Review of the Human Fertilisation and Embryology Act: A Public Consultation (DoH, London 2005)
100. Joint Committee, above n 55, para 44
101. See further, K Horsey, 'Swept under the carpet: Why surrogacy law needs urgent review' in A Wrigley and N Priaulx (eds), Ethics, Law & Society (Ashgate, Aldershot, 2011)
102. Department of Health, Liberating the NHS: Report of the Arm's-Length Bodies Review (DoH, London 2010)
103. Anon, 'Quango list shows 192 to be axed', http://www.bbc.co.uk/news/uk-politics-11538534. accessed 25 July 2011.
104. See generally, http://www.bbc.co.uk/news/world-14138394. accessed 28 July 2011. Brazier, above n 23, p 193.