Rania Bouzekraoui - University of Sussex
Surrogacy in the Courtroom: Legal Battles, Parental Rights, and the Pursuit of Family
Introduction
In England and Wales, bringing a child into the world through surrogacy hinges on a crucial legal step: the parental order. This order is like a key that grants legal parenthood for the intended parents while severing the legal connection between the surrogate and the child. But this process raises critical questions, tangled in both law and ethics.
This essay aims to untangle these complexities paying close attention to how it disadvantages those having to rely on surrogacy. We will contrast our approach with Thailand (a previously popular location for surrogacy arrangements).
We will also explore regulations and the Law Commission’s suggestions for reform and how this is a fantastic step in the right direction if considered by parliament. Our goal is to envision a way forward where everyone involved is protected, and the journey to parenthood through surrogacy is built on legal clarity and ethical responsibility. Our current approach is not the most protective and international agreements are becoming harder as examples with Thailand requiring citizenship. For this reason it is important for those thinking about surrogacy to be very aware of their current rights and promote discussion on reform.
Background
Surrogacy is the act of a woman, known as the "surrogate," conceiving and carrying a child for another family, referred to as the "intended parents." Surrogacy is a great option for those in opposite-sex or same-sex couples who are not able to conceive however it does come with it’s own legal complications. Furthermore, there has been an increase in the use of surrogacy worldwide therefore it is of most importance that we gain an awareness of the legal rights of parents involved or interested in surrogacy. Legislation must also be updated and codified to create certainty of rights and protect the interests of children and individuals.
The Current Law on Surrogacy
The Surrogacy Arrangements Act 1985 and the Human Fertilisation and Embryology Act 2008 are the key legislations concerning surrogacy. The Surrogacy Arrangements Act 1985 imposes certain restrictions on surrogacy in the UK by rendering surrogacy arrangements legally unenforceable even when signed. The Human Fertilisation and Embryology Act 2008, along with legal precedents, establish the criteria for determining the legal parents of a child born through a surrogacy agreement at the moment of birth. According to legal principles, the surrogate will be recognised as the child’s legal mother, while the father or second parent will typically be the surrogate’s spouse or civil partner, if applicable.
The surrogate, herself, can also appoint a second parent who is not genetically related e.g. a friend. However, these circumstances generally only apply if the surrogate does not have a spouse or civil partner. For a surrogate to give her title to the intended parents, a parental order must be obtained.
Parental Order
Since 1994, a legal procedure has been in place to transfer legal parental status to the intending parents and terminate the surrogate’s legal parental status. This legal procedure is referred to as a parental order. The current regulations pertaining to parental orders are outlined in sections 54 and 54A of the Human Fertilisation and Embryology Act 2008.
In addition to granting legal parental status, a parental order also grants the intended parents parental responsibility (in England and Wales) or parental responsibilities and parental rights (PRRs) (in Scotland). The following encompasses the full spectrum of responsibilities and entitlements that a parent possesses with regard to a child, including but not limited to, making determinations regarding the child’s residence, healthcare, and education.
An application for a parental order can only be made once the kid has been born. Applications must be made 6 weeks after the child’s birth but before the child is 6 months old. This is because the parental order necessitates the surrogate’s consent, and according to the law, her consent can only be considered genuine after a certain period of time has elapsed.
Typically, intended parents should expect a waiting period of six months to a year following the birth of the child before a parental order is granted, due to the duration of the legal proceedings. Since its introduction in 1994, parental orders have undergone substantial changes in terms of eligibility. The most recent adjustments to the legislation now permit single intended parents to acquire a parental order.
Typically, granting a parental order will almost always be in the child’s best interests.
Furthermore, the court will use a welfare checklist to ensure that the order takes into consideration: the wishes and feelings of the child, the child’s physical, emotional and educational needs, the effect of the change in circumstance to the child, and any harm or risk of harm the child may suffer. Nevertheless, if the surrogate or her spouse or civil partner refuses to give consent, the court lacks the authority to grant the parental order, regardless of whether it would be in the child’s best interests.
Issues
The presumption that the surrogate is the legal parent who can also reject parental orders, can be problematic. The surrogate, who has no intention of assuming parental responsibilities, is legally obligated to care for the child until the parental order is officially issued. In most instances, when the intended parents take care of the child from birth, the law stipulates that the individuals raising the child do not have any legally acknowledged connection with the child until the parental order is granted.
Until a parental order is granted, the intended parents are not legally recognised as the parents of the child. Therefore, they do not have the authority to make decisions regarding the child, including decisions about medical treatment, unless they have been granted parental responsibility or PRRs. The responsibility for making these decisions lies with the surrogate and her spouse or civil partner, provided that they are not actively involved in the care and upbringing of the kid. the child is also not able to consent to the process due to surrogate-born children not being able to fully grasp their gestational origins until the age of 7. For this reason, it is very important to strengthen law in this area to ensure the protection of children’s rights.
The issues arising with the birthing mother being procured by the legal parent are found in Irish case law too. There have been issues regarding custody battles where commissioning mothers have not been granted custody and commissioning mothers have not been able to claim maternity leave due to not being pregnant.
Currently, there is no official or legal examination of a surrogacy arrangement until the child is born and a parental order is requested. At that point, it is frequently too advanced a phase for concerns over the agreement to be effectively addressed. The court is presented with a child who has been born and is being reared by the prospective parents. In nearly all cases, it is quite likely that granting a parental order is in the best interests of the child unless there are extremely unusual circumstances.
ECHR
There have been instances abroad of the ECHR to combat issues with parental order. In 2018, an Italian couple, L.B. and E.A.M., who are attracted to the opposite sex, engaged in a legally binding agreement with a surrogate mother in Ukraine. As a result, their daughter was born in August 2019. The individuals aimed to have the Ukrainian birth certificate of the child converted into the Italian civil status registry. However, the Italian authorities continuously denied their petitions, citing concerns about public order due to the restriction of surrogacy. The ECtHR determined that the denial constituted a violation of the child’s entitlement to privacy as outlined in Article 8 of the European Convention on Human Rights.
The court reprimanded Italian authorities for disregarding the claims related to the establishment of the parent-child relationship with the biological father. This dismissal occurred without taking into account the interests involved or the necessity for a prompt decision, resulting in legal ambiguity for the child. Thus, there was a violation of Article 8.
However, with respect to the acknowledgment of the connection between the child and her intended mother, the court determined that Italian law offered an alternative pathway through adoption, guaranteeing the evaluation of the child’s best interests. Hence, the decision not to transcribe the birth certificate in this matter did not surpass Italy’s discretionary power, and so, there was no infringement of Article 8. This case suggests that there is a path that can be taken by commissioning parents through the ECtHR however success seems unlikely and only for when there is no option but surrogacy.
Thailand
On the contrary in Thailand, legislation explicitly designates the commissioning couple as the legal parents of the infant conceived using surrogacy which contrasts legislation in England and Wales. The hospital must inform the relevant public authorities about the baby’s birth via this procedure so that the authorities can issue a birth certificate accordingly. A surrogate mother does not have any legal right to claim parenthood, unless both of the commissioning parents have passed away, which is highly improbable. In this scenario, the surrogate mother temporarily acquires legal parentage and has the option to collaborate with appropriate public authorities to petition the court to determine the permanent legal parent. Therefore, the surrogate mother can assert legal ownership of the infant only if both the commissioning parents are deceased and no one representing the commissioning parents disputes her claim. However, in the event that the surrogate mother refuses to keep the baby and both of the intended parents have passed away, the court must determine the legal guardianship of the kid. In terms of the child’s rights, he or she is entitled to the same rights as other children who are born in Thailand.
Nevertheless, the legislation does not address the child’s entitlement to be informed or to choose not to be informed of the identity of their surrogate mother, or whether they were born through surrogacy. As stated before, this is a confidential issue between the commissioning parents, the surrogate mother, and potentially the healthcare experts.
This approach shows a swing of the pendulum in the opposite direction. Legislation is very forgiving to commissioning parents rather than the surrogate or the child. There is no consideration of the child’s interests and how the commissioning parents can provide that. Furthermore, it is incredibly challenging for the surrogate to gain a parental title. This had made Thailand quite lucrative for international surrogate arrangements. As a response, new legislation dictated that Both the commissioning parents need to have both commissioning parents be Thai citizens, and in case one of the couple is not a Thai citizen, they have to be legally married for no fewer than three years.
Although this legislation offers more certainty for commissioning parents (who often pay very high amounts for surrogate services), it can be problematic for the surrogate’s bodily autonomy.
Reproductive Autonomy of the Surrogate
Although surrogacy allows for the surrogate to have reproductive autonomy, the ability to make independent decisions relies on the surrogate possessing the necessary mental and cognitive abilities, as well as being adequately informed. Women who participate in international or commercial surrogacy agreements are frequently depicted as belonging to a lower socioeconomic status. This, in conjunction with inadequate education, might impede autonomy and the ability to make educated decisions. Gestational surrogates are entitled to receive comprehensive information regarding the potential risks associated with their participation, including risks related to pregnancy. They should have the freedom to make an informed decision without any kind of coercion.
Studies have demonstrated that by respecting the surrogate’s bodily autonomy, we are potentially enabling greater personal fulfilment. Certain surrogates may engage in the process only out of altruistic motives. They may desire to assist others in achieving conception, particularly those who may be unable to do so through other means. Conversely, certain surrogates may desire to undergo pregnancy or labour without being compelled to become parents. Thus, by permitting surrogacy, we are satisfying the desires of these women. Gestational carriers frequently express satisfaction with the process and indicate a desire to participate in it again.
Issues with Ambiguous Law
An impact of the existing legislation is that it motivates prospective parents to pursue surrogacy arrangements in foreign countries that offer them more assurance over the result of the arrangement. International surrogacy arrangements primarily occur in countries where the intended parents are legally acknowledged as the parents of the child at birth and are listed on the kid’s birth certificate. Nevertheless, there are certain cases where international agreements give rise to specific concerns regarding the exploitation of women and children. Furthermore, apart from these issues, there are other aspects of the existing legislation that were not specifically designed to address surrogacy, such as employment law and the regulations pertaining to persons’ rights to obtain information regarding their biological heritage.
Furthermore, there may be extra legal obstacles due to the potential incompatibility between international and domestic legislation. There is yet no global organisation or set of laws that governs International surrogacy agreements across national borders. The divergence between UK legislation and legislation in other nations has resulted in cases where children are born without a nationality.
This occurs, for instance, when the laws of the country where the surrogacy occurred acknowledge the intending parent(s) as the legal guardians, while the UK recognises the surrogate as the legal guardian. Potential parents may additionally be required to obtain a visa for their child before to their return to the UK.
In 2008, a prominent instance took place in India known as the ’Baby Manji’ case. This is a story about a newborn baby who was brought into the world through the process of gestational surrogacy in the state of Gujarat. The egg donor utilised was unidentified, but the commissioning parents were a wedded pair from Japan known as the Yamadas. Their divorce occurred before the birth of baby Manji. Ms. Yamada declined parental custody due to the absence of any legal or biological affiliation with the kid. Nevertheless, Indian legislation prohibited the infant from departing the hospital unaccompanied by Mr. Yamada, the biological father. The Japanese Embassy refused to grant a passport to the baby due to her birth in India, while Indian law also prohibited the newborn from receiving an Indian passport.
The instance specifically emphasises the concerns of child care and the possibility of child abandonment in international and commercial surrogacy contracts. Infant Manji was abandoned in India following a family dispute. In addition, they had a temporary status of being without a nationality as a result of legal complications with both Japanese and Indian law.
Law Commission’s Report
Within the Law Commission’s Report on Surrogacy, a new pathway was introduced which has much promise. Within this path, a surrogate is connected with commissioning parents through a regulatory body. After this, criminal and medical checks will be taken regarding the surrogate. This is followed by implications counselling to be undertaken by the intended parents and the surrogate. There will also be assessments regarding welfare of the child to be born through surrogacy and a Regulated Surrogacy Statement signed by the surrogate, the intended parents and the Regulated Surrogacy Organisation.
The commissioning parents will be presumed to be the legal parents however the surrogate has 6 weeks to withdraw consent after the child’s birth. If the surrogate withdraws consent before birth, the commissioning parents will have to apply for a parental order. However, if she withdraws consent after birth, the surrogate will have to apply for a parental order.
This new pathway balances the parental certainty by assuming parental title to belong to commissioning parents. This creates certainty and prevents international surrogacy arrangements that can be exploitative to poorer/minority women. On the other hand, it preserves bodily autonomy on part of the surrogate through allowing her to withdraw consent up to six weeks after the birth. The uncertainty of allowing surrogates to withdraw consent, has been remedied by suggesting extensive examinations on her criminal record and medical history. The pathway is significantly more clear and efficient at protecting rights of commission parents, children, and surrogates. However it is paramount that both commissioning parents, and the surrogate demonstrate ability to cater to child’s wellbeing when applying for a parental order through a wellbeing checklist similar to the one currently employed in England and Wales. The court should be granted the power to allocate parental title if it would improve the child’s quality of life.
Concluding Remarks
Several questions still remain to be answered regarding surrogacy law in England and Wales. Within surrogacy arrangements, a delicate balance needs to be achieved between protecting the rights of surrogates, commissioning parents, and children. The parental order fails to protect commissioning parents and children by presuming the surrogate to be the legal parent.This results in disputes regarding immigration and custody which negatively impacts children. Even though the ECHR is an option, success is very unlikely. The Law Commision has provided a new pathway to combat this and presume the legal parent to be the commissioning parent. This is a step in the right direction and helps create certainty and protect rights. We must await if parliament will consider the pathwar. It must also be examined closely how the child’s well being will be considered in the process. It will be paramount to consider how the parent claiming legal status is able to provide the educational, financial, and emotional needs of the child.
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Bibliography
1 Crawshaw M, Blyth E, van den Akker O. The changing profile of surrogacy in the UK – implications for national and international policy and practice. J Soc Welf Fam Law 2012;34:267–77.
2 Surrogacy Arrangements Act 1985
3 Jadva V, Blake L, Casey P, et al. Surrogacy families 10 years on: relationship with the surrogate, decisions over disclosure and children’s understanding of their surrogacy origins. Hum Reprod 2012;27:3008–14
4 M.R. and D.R. and O.R. and C.R. v An t-Ard Chlaraitheoir, Ireland and the Attorney General. Supreme Court; 2014
5 G v Department of Social Protection. High Court; 2015
6 C. v. Italie (application no. 47196/21)
7 Hongladarom, Soraj. "Surrogacy law in Thailand." (2018).
8 Brandão P, Garrido N (2022) Commercial surrogacy: an overview. Rev Bras Ginecol Obstet 44(12):1141–1158
9 Ethics Committee of the American Society for Reproductive
Medicine (2023) Consideration of the gestational carrier: an Ethics Committee opinion. Fertil Steril 119(4):583–588
10 29. Gunnarsson PJ (2018) Autonomy in altruistic surrogacy, conflicting kinship grammars and intentional multilineal kinship. Reprod
Biomed Soc Online 7:66–75
11 ibid
12 . Gracias CS (2021) Reproductive surrogacy in Ireland — an ethical and legal context. Ir J Med Sci (1971) 190(3):1063–1070
13 . Jadva V, Murray C, Lycett E et al (2003) Surrogacy: the experiences of surrogate mothers. Hum Reprod 18(10):2196–2204
14 Trimmings K, Beaumont P. International surrogacy arrangements: an urgent need for legal regulation at the International
level. Journal of Private International Law 2011;7:627–47
15 ibid
16 2. Department of Health and Social Care. The surrogacy pathway:
Surrogacy and the legal process for intended parents and surrogates in England and Wales [Internet].
London, 2019. [Accessed 21 Apr 2021].
17 Parks JA (2010) Care ethics and the global practice of commercial surrogacy. Bioethics 24(7):333–340
18 ibid
19 ibid
20 ibid
21 ibid
