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Is it time to allow enforcement of surrogacy agreements?

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About The Author

Manprabh Basi (Writer)

Manprabh (Mani) is a recent Bar Professional Training Course Graduate from Nottingham Law School and is currently on the hunt for pupillage. In 2012 he successfully achieved a First Class LLB and also went on to undertake a Joint LLM in Sports and Employment Law in which he achieved a First Class Distinction.

Photo Credit Mr. Hayata on Flickr

As the law currently stands, surrogacy agreements are unenforceable within the United Kingdom. However, many people are still entering into such agreements unaware of the legal difficulties that can arise. This article will examine how the courts have been dealing with surrogacy agreements, and ask whether it is now time for parliament to introduce a statutory framework to regulate surrogacy agreements.

Defining Surrogacy

In December 2013, Yasmin Daswani wrote an article for Keep Calm Talk Law assessing whether contract law could be used to enforce surrogacy agreements. She defined surrogacy as ‘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’. Accordingly, surrogacy is a method utilised by couples, often described as ‘intended parents’ who are themselves unable or unwilling to conceive children.

There are two types of surrogacy. The first type can be undertaken at home and involves an insemination kit being provided to the surrogate mother using the sperm of the intended father. This method conceives a child using the surrogate mother’s egg. The second type known as gestational surrogacy is a method where the egg is provided by the intended mother (or donor) which is fertilised through IVF and placed inside the surrogate mother.

The Law

One of the first concerns when it comes to surrogacy agreements is whether they are legal and countries differ in terms of their approach. In the United Kingdom the relevant law is found within the Surrogacy Arrangements Act 1985 (‘The Act’) and similar provisions apply in both Ireland and Belgium. Sections 2 and 3 create an offence where a fee is paid to a mother to have a child on behalf of others, which is classified as a ‘commercial surrogacy’. However, surrogacy within itself, where surrogate mother is only able to receive reasonable expenses throughout the process, is permitted.

As there is no law making it illegal to enter into a non-commercial surrogacy agreement, surrogacy is a practical solution and option for many couples. Nonetheless, just because surrogacy is legal does not necessarily mean that complications do not materialise. Section 1A of the Act sums up the position: ‘no surrogacy arrangement is enforceable by or against any of the persons making it’. Therefore, if an agreement was entered into, getting the court to give effect to it can be extremely problematic. However, after the birth of a child any disputes involving that child are regulated by the Children’s Act 1989. The underlying principle is that the child’s welfare is the paramount consideration (Section 1 (1)). Not surprisingly, the courts have had to deal with many cases that arise out of a failed surrogacy agreement.

The Court’s Approach: H v S

A recent case which has raised some important issues in regards to the UK’s approach on surrogacy is H v S (Surrogacy Agreement) [2015] EWFC 36. This case concerned cross-applications for both residence and contact for a child. The applicants were the child’s father and his partner and the respondent was the mother. The child was conceived following a surrogacy agreement and it was precisely this agreement which caused problems.

The mother argued that there was an agreement in place for the father of the child to act only as a sperm donor. Conversely, the father and his partner gave evidence to the effect that the mother agreed to act only as a surrogate mother. The mother applied for the child to live with her and the father applied to have the child live with him and his partner, seeing their mother twice a week.

On delivering the judgment, Ms Justice Russell made clear that the function of the court in these types of cases is to focus solely on the welfare of the child. Her Ladyship made clear that ‘it is not the function of this court to decide on the nature of the agreement... and then either [to] enforce it or put it in place’. It was equally made clear that ‘it is the function of the court to decide what best serves the interests and welfare of this child throughout her childhood’.

It was therefore the court’s duty to apply the welfare checklist as found within Section 1 (3) of the Children’s Act 1989, which focuses on matters such as the child’s needs, age, sex, background, any harm the child is at risk of suffering and the capabilities of the parents.

In applying the checklist it was held that the father would be best suited to meet the child’s needs. Although it was appreciated that the child has spent the majority of her life with the mother it was found on balance that the father had a ‘child-centred approach’. There was also evidence that the mother had made allegations unsupported by evidence, tried to discredit the father and was an unreliable witness.

In my opinion, what is significant about this case is that the court has made clear that a surrogacy agreement is not influential to the court’s decision making process, and the law does not require it to be so.

This case will reopen the surrogacy debate within the United Kingdom as it demonstrates agreements can easily go wrong. However, the court is only interested in the child’s welfare and I believe there is nothing wrong with this. If the courts were due to assess the nature of agreements, without specific legislation in place, then this could be a distracting feature away from the most important issue in cases involving child: their welfare.

Time for Regulation?

In the aftermath of the decision of H v S, many lawyers throughout the country raised their concerns on the current state of the law. Cara Nuttall from the firm Slater Gordon described the law as ‘a bit of a mess’ adding that when these agreements ‘go wrong, they go spectacularly wrong’. Peter Morris, a partner at Irwin Mitchell said: ‘the key issue raised by this case is that the UK lacks a clear, comprehensive legal framework to cover the concept of surrogacy’.

Morris compared the UK’s approach to that of some states within the US. For example in California, each individual involved in a surrogacy agreement is compelled to undertake a psychological screening and must receive comprehensive legal and medical advice. I find the approach in the US attractive, because the fact that the whole process is legally regulated goes some way to eradicating potential problems that may arise in highly emotive circumstances involving children. Unlike the UK, when a surrogacy dispute arises in the US, the court can assess the terms that were agreed to beforehand with greater certainty because the parties have undergone a strict assessment. Therefore, although the child’s welfare is the key consideration in the UK, in the USA the agreement that was entered into will be the focus, but issues surrounding the agreement will be solved with greater ease because of the framework that is in place to assist the courts.

Additional Surrogacy Concerns

The fact that surrogacy agreements are unenforceable is not the only issue with the law in this area. Currently, under Section 33 of the Human Fertilisation and Embryology Act 2008, the natural mother will be the legal mother of the child, even if the child is not genetically related to her. Therefore, a surrogate mother is entitled to change her mind after the birth of a child. This is the case even if there is a signed agreement and expenses have been paid. Also, if the natural mother is married, then her partner, regardless of whether he is related to the child or not can be registered as the legal partner.

In order to transfer legal rights to the intended parents, a parental order must be applied for. A parental order permanently extinguishes the legal rights of the surrogate mother and her partner regarding the child. Upon being granted, the birth of the child will be re-registered and a new birth certificate will be issued. Nonetheless, applying for a parental order is not simple: section 54 of the Human Fertilisation and Embryology Act 2008 stipulates certain criteria that must be established. For example, some of the most important requirements are:

  • it must be established that an order will be in the child’s best interests
  • the natural mother and the husband must freely consent to the order
  • no more than reasonable expenses have been paid
  • the intended parents must be married (or in a civil partnership) or living together as partners in an enduring family relationship
  • the intended parents must submit the application to the court within the six months after their child is born

The courts are again granted a wide discretion but last criterion has caused particular difficulties. The President of the Family Division, Sir James Munby dealt with time limit issues in the case of Re X (A Child) (Surrogacy: Time Limit) [2014] EWHC 3135. The intended parents in this case were unaware of the time limit for applying for a parental order and therefore the surrogate parents remained the legal parents for a period of two years and two months. A flexible approach was taken in this case as it was recognised that ‘there is no reason to believe that Parliament either foresaw or intended the potential injustice which can result from absolute and inflexible time limits for appeals’ and accordingly, this criteria is not applied strictly.

In an article written by Owen Bowcott for the Guardian, it is estimated that there are 2000 children a year born as a result of surrogacy, whereas only 241 applications for parental orders were made during 2014. As a result of this statistic, High Court judge Dame Lucy Theis recently voiced the widespread concern that parents are still failing to apply for a parental order, which she described as a ‘ticking legal time bomb’. Theis made reference to the fact that these children will have difficulties if there intended parents are not registered as their legal parents, when it comes to claiming inheritance in the future and even for other practical issues such as applying for passports. 

I would argue that there is a link between the unenforceability of surrogacy agreements and the lack of parental orders being made. In my opinion, if surrogacy agreements were regulated and there was legislation in place then more individuals would seek appropriate legal advice when aiming to draft the agreements. At this stage, they would have the opportunity to be advised from legal professionals of the importance of applying for a parental order after the birth of the child. Having specific legislation in place regulating agreements would therefore operate as a safety net in ensuring that members of the public seek legal advice, to ensure their rights and interests are protected.

If the United Kingdom introduced legislation enabling contracts to be enforceable, as Yasmin’s article for Keep Calm Talk Law argued, a greater awareness of the complications that surrogacy agreements will be raised, enabling parents to ensure that agreements are clear in case any parties change their mind and to ensure that parental orders are applied on time.

Conclusion

Surrogacy can be a wonderful solution to many people, particularly given the fact that an estimated 3.5 million people in the UK are affected by infertility. Surrogacy also provides same sex couples with the opportunity to become parents. In modern times it is also recognised that surrogacy is a ‘mainstream and accepted way of building a family’ and therefore I can foresee an increase in agreements being entered into year on year.

Difficulties do arise when surrogacy agreements are entered into nonetheless, simply because such agreements are not enforceable. These disputes can be extremely sensitive and difficult for the courts to deal with. A solution can be found in legislation to regulate agreements. Legislation would encourage individuals to seek appropriate legal advice before entering into agreements and this would enable people to become aware of the possible consequences and complications that can emerge in the aftermath of a surrogacy birth. Additionally, if implications do emerge, then as there will often be a legal agreement that was entered into, the courts will have the opportunity to examine it along with the welfare principle. I therefore argue that it is now time that Parliament intervenes to ensure that surrogacy agreements are legally enforceable, using contractual principles as argued by Yasmin in her article.

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Tagged: Family Law

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