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Penny Booth: In place of what, exactly?

Date:24 JAN 2011

Penny BoothSurrogate; deputy... substitute. (The concise Oxford Dictionary). A substitute - for what, exactly? One needs to ask.

A week or two ago we had the media splashed with the story of the Elton John and partner baby born of a surrogate mother (not sure if that was really a ‘surrogate' or not, but if a donated egg rather than the surrogate's own was used, then it was) where Elton John and his partner would bring up the child born from the sperm of one of them. I am happy for them, particularly if they carry out their laudable intentions of bringing up baby without too much influence on money and more on love, with (rather than without) contact with the child's mother and acting qua family, generally. Here's hoping.

Surrogacy in this country ought to be examined again in detail - as a matter of urgency. It is believed to be far more common than when the 1990 and 2008 Acts were enacted, but we have never been good at grasping the nettles of family matters. Last week there was the slightly unedifying (for some) and very uncomfortable (for most) case of a ‘surrogacy disagreement' where the surrogate mother refused to hand over the child to the ‘commissioning couple' and the judge permitted the mother to keep the baby rather than hand it over to the father in compliance with the agreement made. Sanctity of contract goes out the window - thankfully - but where does that leave arrangements for children born of such commercialised private arrangements?

 In this case the mother was inseminated by the father (according to the reports of the case) after it became apparent that he and his wife were not able to have children. At some point during the pregnancy relations between the parties deteriorated. If, as the case seems to report, the judge referred to the creation and attachment between mother and child during pregnancy this merely added to the harshness of having to hand over the child. The mother changed her mind after the baby was born - and the judge felt it was the mother who would best meet the child's needs, especially emotional needs. The internet, where the parties first ‘met' has much to answer for... somebody had better have a good explanation ready for the child in due course.

Is there a difference between full and partial surrogacy where the law is concerned? Should there be a difference between situations where the mother not only carried a child for nine months and was genetically connected to the child by the use of her own egg(s) and the situation where she has' leased' her womb for the purposes of doing what science cannot yet do? In other words, if it is parturition that ‘counts', then genetics is not crucial; if genetics is important, then that may paint a different picture of ‘belonging'.

In this country the law favours parturition - the woman who give birth seems to have the upper hand (if you have ever given birth you'll know it is scant reward to know you have the upper hand) but we do not appear to discourage such arrangements - it is not enough to describe them as having ‘very considerable' risks. The urge to have your ‘own' child must be enormous when you realise that nature is not complying with your apparently reasonable expectations. What about the financial issues? Even if this is legally secure, the attachment of money to the arrangement should not equal a right to have a child, not even a ‘better' right to a child because you can go abroad and perform the deed.

For the sake of us all, for the cases that may yet come to court, for the children in the future, it is time to look again at this most difficult of family situations. Time we dusted off the ethics file and brought it more into play in family law matters like these.

Penny sets the questions for Family Law journalCPD, a new way to gain CPD points by answering multiple choice questions based on the content of the journal.

She is an Honorary Research Fellow at Liverpool University Centre for the Study of the Child, the Family and the Law. Click here to follow Penny Booth on Twitter.

The views expressed by contributing authors are not necessarily those of Family Law or Jordan Publishing and should not be considered as legal advice.