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Rights for Surrogate Mothers
UNDER CONSTRUCTION
As the law stands, a surrogate mother is the legal mother of the child that they give birth to, even if they are not genetically the mother of that child, and despite any contract they may have signed. While this upholds her freedom to choose, this puts the intended parents, especially those who are also the genetic parents, in a very difficult position. The debate has it’s foundations in these questions: what is more important, the surrogate mother’s right to choose or the promise or contract with the intended parents? What matters more, the bond that the surrogate mother has with the child she gave birth to or the genetic connection between the child and it’s genetic parents? This essay will argue that the genetic parent(s) should automatically be the legal parents, thus also upholding the contract.
It is clear that the law as it stands is wrong; a legal contract, when paired with a genetic relationship, is more important than any feelings of cold feet the surrogate mother may feel after having given birth. Therefore, it is suggested that the law on surrogacy needs to be reformed. The law should state that the genetic parents, who are also the intended parent(s) - the parent(s) stated in the contract, signed by the surrogate mother - should be the legal parents of the child without the need for any sort of transfer of parenthood.
Of course this new law would need to be paired with some controls. The contract must be legal and approved (by who? Is this practical?), and it must be certain that there was no duress or bribery involved. Also, social services would need to be involved to make sure that the intended parent(s) are fit for parenthood before the contract is concluded.
How the law is:
The law on surrogacy is set out in the Surrogacy Arrangements Act, 1985.
The bare facts:
‘Surrogates are the legal mother of any child they carry, unless they sign a parental order after they give birth transferring their rights to the intended parents.’[1]
‘The woman who gives birth is always treated as the legal mother and has the right to keep the child - even if they’re not genetically related.’[2]
‘Surrogacy contracts aren’t enforced by UK law, even if a contract has been signed with the intended parents and they’ve paid for any expenses.’[3]
The surrogate mother will be the legal mother ‘unless or until parenthood is transferred to the intended mother through a parental order or adoption after the birth of the child.’[4]
The current law means that the surrogate mother has the freedom to change her mind - the right to choose to keep the child she carried inside her for nine months - and this freedom is unlimited unless parenthood is legally transferred. Freedom is important (expand, examples), so this may seem fair, but look deeper; the surrogate mother has the right to change her mind and keep the child even if it is not genetically related to her, even if she signed a contract to bear the child for another couple, even if it means denying this other couple their genetic offspring, perhaps their only chance of a child. Let’s not forget that this couple may well have paid thousands of pounds for this process (check exact facts).
People often tend to focus on the rights of the mothers when thinking about surrogacy, but the rights of the father or ‘second parent’[5] are also important. The law states that the father or second parent is the husband or civil partner of the legal mother (surrogate mother), unless ‘legal rights are given to someone else through a parental order or adoption [or] the surrogate’s husband or civil partner didn’t give their permission to their wife or partner’.[6] If the procedure was performed in a licensed clinic and the ‘surrogate has no partner, or they’re unmarried and not in a civil partnership, the child will have no legal father or second parent unless the partner actively consents.’[7] Just as it affects the genetic mother, the current law also affects the genetic father in a very negative way; therefore, just as the genetic mother should automatically be the legal mother in a contracted surrogacy situation, as should the genetic father.
The intended parents can become the legal parents of the child after it has been born in two ways: parental order or adoption. A parental order transfers the rights and obligations of parentage to the intended parents, as long as all the conditions are met. The most limiting of these conditions is that ‘at least one of the commissioning couple must be genetically related to the baby i.e. be the egg or sperm provider. Couples must be husband and wife, civil partners or two persons who are living as partners.’[8] If the requirements are not met for a parental order, then adoption is the intended parents’ only option. In order for them to adopt, ‘a registered adoption agency must be involved in the surrogacy process.’[9]
Pros of the current law
There are some redeeming features of the existing law. ‘Clinics have to consider the possibility of a breakdown in the surrogacy arrangements and whether this is likely to cause serious harm to the child to be born or to existing children.’[10]
Cons of the current law
How the law should be in an ideal world:
Rights of the surrogate mother
Rights of the father
Rights of the intended parents
Pros
Cons
Suggested law reform:
Rights of the surrogate mother
Rights of the father
Rights of the intended parents
Pros
Cons
How the cons can be dealt with
Conclusion