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Should Contract Law be used to Enforce Surrogacy Arrangements?

About The Author

Yasmin Daswani (Former Writer)

Yasmin is currently a third year law student at Durham University. Yasmin aspires to be a solicitor and is currently interested in criminal and family law. Outside of her studies, Yasmin is a passionate sportswoman; she is part of her university waterpolo team.

As it stands UK legislation is forcing many families abroad to find a surrogate mother for their child due to limitations on what can be paid to a surrogate mother. However by travelling abroad the resultant baby may be left in legal limbo - a citizen in neither state. But what is the solution?

What is Surrogacy?

Surrogacy is the practice whereby one woman (the surrogate) carries a child for a couple (the commissioning couple) with the intention that the child is handed over at birth.  Couples who are unable to have children oftenlook to surrogacy as a last resort.  

The UK has taken a restricted approach to surrogacy, largely because of public policy. This public policy is commonly seen throughout fertility laws and is exemplified by the fact that egg donors can only receive ‘compensation’ rates for their donations, and cannot be paid.  Public policy believes that these intimate arrangements should only be made altruistically, and that some things, such as ‘renting’ a woman’s womb, should never be the subject of economic transaction. 

UK law therefore prohibits the commercialization of surrogacy, and under the Human Fertilisation and Embryology Act 2008 (HFEA 2008) the surrogate mother cannot be paid ‘more than reasonable expenses.’ British couples struggle to find altruistic surrogate mothers in the UK so will often go abroad to countries where surrogacy is largely unregulated and can be paid for. However issues arise due to disparities in national laws.  Thus in some cases the child is rendered stateless and parentless.

It is suggested in this article that in order to overcome these problems, surrogacy should be dealt using principles found in contract law. This would allow the agreement between the surrogate and the commissioning parents to be enforceable, and would ensure that legal parentage is vested in the commissioning parents.

What are the Issues?

British parents struggling to find a surrogate mother in the UK are able to go abroad and find surrogates in countries such as India and the USA, where surrogacy is practised commercially and can be arranged for a price.

But the problems with this practise are extreme, as under UK law the wrong people are treated as the legal parents when the child is born. This was highlighted by the case of Re X and Y [2009], where a British couple had twins through a surrogacy arrangement with a married woman from Ukraine.  Under Ukrainian law, the British parents were the legal parents, however under English law the surrogate mother and her husband were the legal parents. The disparities in law had the effect of leaving the children in a dangerous position; they had no legal parents or rights to citizenship in either the UK or Ukraine. 

In addition, there is a lack of clarity regarding payments. Section 54 of the HFEA 2008 sets out the conditions which allow a court to grant a parental order. This provides a way for the commission parents to have parental rights transferred to them from the surrogate (and her partner), without having to rely on adoption law.  However, one of these conditions is that the commissioning parents cannot pay more than ‘reasonable expenses.’ Yet what are ‘reasonable expenses’?

In Re X and Y [2009], the surrogate mother received a payment of £200 per month, and a lump sum of £21,000 euros on the live birth of twins.  It was concluded in the judgement that this sum clearly exceeded reasonable expenses, thus the judge was faced with balancing the welfare of two vulnerable children against the issue of public policy. Ultimately, the welfare of the child was given priority, however the parental order took many months and throughout the limbo period the parents caring for the child had no decision-making authority. 

The issues in Re X and Y [2009] were raised again more recently, in the case of J v G [2013] where the court authorised a payment of £35,000 plus expenses. There has not been a single case where the court has refused a parental order due to payment to the surrogate. Consequently, commercial surrogacy is becoming common; couples go overseas and have children, and then, as Hedley J stated, ‘seek retrospective approval for something which could not lawfully have been done (in the UK).’ Since parents are finding ways to circumvent the law, it is argued that either the law needs tighter restrictions, or needs to be reformed to permit these payments.

A Change in Public Policy towards Commercial Surrogacy? 

The laws that vest legal parenthood in the surrogate mother were drafted in 1990 and are largely out-dated, as they were created at a time when surrogacy was viewed as rare and ethically unacceptable.  However, surrogacy no longer applies to just altruistic inter-family arrangements. There have been a number of high-profile commercial surrogacy cases, such as the birth of Elton John’s child through surrogacy, which illustrates that commercial surrogacy is becoming more common. In addition, a Liberal feministic perspective seeks to defend a woman’s right to use her body as she chooses and argues that to prevent women from entering into surrogacy contracts is to deny them democratic freedom.  This perspective portrays surrogacy as no different from any other wage labour contract. (Susan Markens, Surrogate Motherhood and the politics of relationships p17)

So what is the solution? 

Natalie Gamble a lawyer, who specializes in fertility law, suggests that a short-term solution is to make fertility patients aware of the legal pitfalls of looking abroad for surrogacy.  She submits that there needs to be more public information to help patients understand the consequences. This solution is uncontroversial and should be considered immediately, especially considering the importance of ensuring that children are not put in such vulnerable positions. 

However Emily Jackson has put a long-term solution forward. (Emily Jackson, Regulating Reproduction- Law, technology and autonomy, chapter 6) She sets out ways in which the principles of contract law may be used to solve the issues with surrogacy law. It is submitted that her approach should be taken, and that contract law can be used to produce a framework for the regulation of surrogacy. This approach would ensure that the commissioning parents are the legal parents sooner, and would ensure that children are not stuck in legal limbo.   

Using contract law

Similar to most other contractual relationships, surrogacy contains two parties who enter into an agreement voluntarily. The principle of freedom of contract states that the courts should, as far as possible, respect the individual’s freedom to enter binding contracts.  On the birth of the child, therefore, the surrogate can transfer the baby (and parental rights) to the commission parents, thus extinguishing her own rights as the child’s legal parent.

However, a concern with surrogacy is that a woman cannot fully consent to bear a child for someone else, as she cannot know whether she will want to hand over the child at birth due to the hormonal changes that she is suffering.

Yet contract law can deal with this in the same way that it deals with an actor who refuses to complete his performance on stage. In these circumstances specific performance would be oppressive; therefore contract law instead uses the remedy of damages.  This would mean that the surrogate would have to compensate the other commissioning couple for their disappointment, but would not have her basic liberties infringed on.   

 In addition, a contract may be invalidated on grounds of public policy. Forcing a dissenting surrogate mother to give up her child is clearly against public policy, so her right to withdraw from the agreement can be upheld at all stages during the pregnancy.  Once she has handed over the baby, however, this right can be extinguished.  

Another concern is that the commissioning parents could interfere with the surrogate’s liberty by incorporating terms into the contract that are manifestly unfair.  For example, they could expressly specify that the surrogate mother should have an abortion if the child is disabled.  

 This term would not be respected and could be struck out without invalidating the contract completely.  In contract law, the courts reserve the right to influence binding agreements by invalidating unfair terms.  At any rate, carrying out medical intervention without the consent of the surrogate mother at the time of the operation is unlawful, and would constitute both battery and assault.

Yet what if the commissioning parents back out of the agreement whilst the surrogate is pregnant, or when the baby is born?  Damages would not adequately compensate the surrogate if she does not want responsibility for the child. 

This area is less straightforward. It is suggested that the default rules should allocate responsibility to the commissioning couple, as they are the ones who are responsible for the child’s conception.  Therefore it would be their responsibility to give the child up for adoption. 

Another final concern is that commercial surrogacy is exploitive, as it is appeals primarily to women who are economically unstable and who are ‘forced’ into surrogacy to earn money. 

Yet this ignores the fact that many women often have altruistic motives for becoming surrogates. In Lori Andrews’ interview with surrogate mothers (Lori Andrews, Between Strangers: Surrogate mothers, Expectant fathers, and Brave New Babies) 75 per cent said that the most rewarding aspect of surrogacy was helping to deliver a child for a couple who desperately want a family.  It is not clear why a surrogate mothers assertion that she became a surrogate to help an infertile couple is treated as less worthy of respect than a soldier’s claim to enjoy fighting in the army to serve his country.

Furthermore, if the terms are extremely one-sided in favour of the party who has the superior bargaining power then the doctrine of unconscionability will make the contract unenforceable.

Non-payment and non-enforcement of surrogacy contracts have been a large part of the United Kingdom’s strategy to discourage surrogacy.  This has been due to public policy reasons, however these reasons are now out-dated and have caused the law to develop in a way that jeopardizes the welfare of children born of surrogacy.    

It is clear that in the long-term, the law needs to be reformed. Surrogacy deals with the sacred act of childbearing; therefore there will always be public policy issues that need to be addressed when deciding how to make the law more comprehensible. However, the danger of leaving surrogacy laws the way they are outweighs any remaining issues. In addition, surrogacy has become more accepted in society and any development in the law should reflect this. 

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Tagged: Family Law, Medical Law & Ethics

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