Commentary: Surrogacy: 'A cautionary tale'

Medical Law Review

Volumn 20, Issue 4, 2012, Pages 631-641

  Alghrani, Amel ^a  

^a UNIVERSITY OF MANCHESTER   (United Kingdom)

Author keywords

[No Author keywords available]

Indexed keywords

ARTICLE; CONTRACT; FEMALE; GOVERNMENT REGULATION; HUMAN; INTERPERSONAL COMMUNICATION; LEGAL ASPECT; MOTHER; UNITED KINGDOM;

CONTRACTS; FEMALE; GOVERNMENT REGULATION; GREAT BRITAIN; HUMANS; NEGOTIATING; SURROGATE MOTHERS;

EID: 84877308417     PISSN: 09670742     EISSN: 14643790     Source Type: Journal    
DOI: 10.1093/medlaw/fws032     Document Type: Note

References (60)

1. Hereafter referred to as Re T
2. H Pidd, 'You can tell everybody, this is our son: Elton John becomes a father at 63' The Guardian 28 December 2010
3. V Grioskop, 'What is the truth behind Sarah Jessica Parker's use of a surrogate?' The Guardian 30 April 2009
4. 'Nicole Kidman announces birth of daughter born through surrogate' The Guardian 17 January 2011
5. While the 'notion' of surrogacy dates back to biblical times when the infertile Sarah gave her servant Hagar to her husband Abraham so that a child could be conceived and born to them; the earliest reported case of surrogacy in the UK is that of Av C (1978) 8 Fam Law 170 fully reported in 1985; see [1985] FLR 445
6. M Freeman, 'Is Surrogacy Exploitative?' in S McLean (eds) Legal issues in Human Reproduction (Dartmouth, Aldershot 1989) 178
7. M Warnock, Report of the Committee of Inquiry into Human Fertilisation and Embryology (Cmnd. 9314) (HMSO, London 1984), para 8.17.
8. Re T, para 1
9. At the time, there was a moral panic over the highly publicised case of 'Baby Cotton' see Re C (a minor) [1985] FLR 846
10. For Kim Cottons story (the surrogate in the case) see K Cotton and D Winn, Baby Cotton for Love and Money (Dorling Kindersley 1985)
11. K Horsey and S Sheldon, 'Still hazy after all these years: the law regulating surrogacy' (2012) Med L Rev 67-89 at 67
12. The method of conception adopted was that Mr W would ejaculate into a beaker, and then Mrs W would draw the ejaculate in a syringe which she would then pass onto the mother to insert into her vagina
13. Re T, para 22
14. Re T, para 69
15. For criticism of the missed opportunity to effect greater reform with the parenthood provisions in the 2008 Act, see J McCandless and S Sheldon, 'The Human Fertilisation and Embryology Act (2008) and the Tenacity of the Sexual Family Form' (2010) 73 (2) The Modern Law Review 175
16. Brazier Report, Surrogacy: Review for Health Ministers of Current Arrangements for Payments and Regulation (Cm. 4068) (Department of Health, 1998).
17. See also Michael Freeman, Does Surrogacy Have a Future after Brazier? ((1999) 7 Medical Law Review 1-20)
18. See Mary Warnock, Report of the Committee of Inquiry into Human Fertilisation and Embryology (Cmnd. 9314) (HMSO, London 1984).
19. Brazier Report, Surrogacy: Review for Health Ministers of Current Arrangements For Payments and Regulation (Cm. 4068) (Department of Health 1998).
20. M Freeman, 'Is Surrogacy Exploitive?' in S Mclean (eds) Legal Issues in Human Reproduction (Gower 1989) at 164-84
21. SA 1985, s 3
22. HFEA 2008 S54 '(8) 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 for or in consideration of- (a) the making of the order, (b) any agreement required by subsection (6), (c) the handing over of the child to the applicants, or (d) the making of arrangements with a view to the making of the order, unless authorised by the court'
23. http://www.surrogacyuk.org/.
24. Childlessness Overcome through Surrogacy is a Voluntary Organisation working in the UK. For more information see: http://www.surrogacy.org.uk/About_COTS.htm.
25. Note parental orders have still been made in cases where expenses have exceeded what is deemed 'reasonable'. In the recent case of A v another v and others [2011] EWHC 1738 (Fam)-Theis J noted that on the evidence, it was likely that the payments made to the surrogate mother had been more than expenses reasonably incurred. However, as there was no evidence that the commissioning couple (Mr and Mrs A) had acted in anything other than the utmost good faith, or that the level of payments or the circumstances of the case could be said to have overborne the will of the surrogate mother, the court would authorise, pursuant to s 54 of the 2008 Act, the payments that had been made to the surrogate mother in accordance with the surrogacy agreement.
26. The Human Fertilisation and Embryology Act 2008 s 33(1) replaced s 27 of the 1990 Act but retains the provision 'the woman who is carrying or has carried a child as a result of the placing in her of embryo or of sperm and eggs, and no other woman, is to be treated as the other of the child.'
27. HFEA 2008, ss 36-37 and 43-44
28. [54S ] provides '(1) On an application made by two people ('the applicants') the court may make an order providing for a child to be treated in law as the child of the applicants if- (a) the child has been carried by a woman who is not one of the applicants, as a result of the placing in her of an embryo or sperm and eggs or her artificial insemination, (b) the gametes of at least one of the applicants were used to bring about the creation of the embryo, and (c) the conditions in subsections (2) to (8) are satisfied'
29. Human Fertilisation and Embryology Act 2008, s 54
30. Human Fertilisation and Embryology Act 2008, s 54(7)
31. For criticism of the parental status provisions see K Horsey, 'Challenging Presumptions: Legal Parenthood and Surrogacy Arrangements' (2010) 22 (4) Child and Family Law Quarterly 449-74
32. S 1A of the Surrogacy Act 1985 Inserted by s 36 of the Human Fertilisation and Embryology Act 1990
33. M Brazier and E Cave Medicine, Patients and the Law (Penguin Books, London 2007) 381
34. The court in making any decisions pertaining to any child (whether born via surrogacy or not) will make orders taking into account the 'best interests' of the child, Children Act 1989
35. Re T, para 23
36. Re T, para 34
37. Re T, para 46
38. M Warnock, Making Babies: Is There a Right to Have Children? (Oxford University Press, Oxford, UK 2002)
39. E Jackson, Medical Law Text, Cases and Materials Second Edition (Oxford University Press, Oxford, 2010) 853
40. Johnson v Calvert [1993] 5 Cal. 4th 84, 851 P.2d 776.
41. Surrogate Motherhood Agreements (Approval of Agreement and Status of Newborn) Law 5756-1996
42. English translation available from: Annual Review of Population Law 23-24 (1996/7): 326-30
43. Children Act 1989
44. Re P (Surrogacy: Residence) [2008] 1 FLR 2008
45. Re T, para 50
46. Re T, para 73
47. Re T, para 70
48. Re T, para 57
49. Re T, para 63
50. For arguments that a new norm of child sharing be instituted both legally and socially in relation to surrogacy cases see J Wallbank, 'Too Many Mothers? Surrogacy, Kinship and the welfare of the Child' (2002) 10 Med L Rev 271-94
51. F Mullock and others, 'Surrogacy: The Experience of Commissioning Couples' (2003) 18 (6) Human Reproduction 1334-42
52. Re P (Minors) [1987] 2 FLR 421, Re MW [1995] 2 FLR 7159, C and C [1997] Fam Law 226, W and W v H [2002] 2 FLR 252, Re P (Surrogacy: Residence) [2008] 1 FLR 177
53. Wand W v H [2002] 2 FLR 252. Although this case involved a dispute over relinquishment, the court ordered the matter be heard in California as that was where the surrogacy contract was formed, where the procedure took place, and where previous court proceedings has been instituted.
54. P Trowse, 'Surrogacy: Is It Harder to Relinquish Genes' (2011) 18 (3) J Law Med 614-33
55. P Trowse, 'Surrogacy: Is It Harder to Relinquish Genes' (2011) 18 (3) J Law Med 614-33
56. Surrogate Motherhood Agreements (Approval of Agreement and Status of Newborn) Law 5756-1996
57. Re T, para 38
58. See X v Y (Foreign Surrogacy) [2008] EWCH 3030(Fam) where a British couple commissioned a Ukraine surrogate, but as they were not deemed legal parents, it resulted in a position where the children were 'marooned stateless and parentless whist the applicants could neither remain in the Ukraine nor bring the children home'
59. Re T, para 9
60. Re T, para 2