It is widely recognised that UK surrogacy law is problematic and deficient. Earlier this month, on 3rd January 2019, a remedial order came into force amending a legislative provision which was judged discriminatory and in breach of the European Convention of Human Rights. Its effect is to allow a single person to apply for a parental order (‘PO’) in order to formalise his or her status as the child’s legal parent, an option previously only open to married or civilly-partnered couples. Whilst this change is necessary and welcome, the cumulative effect of these patch-up jobs have the left the law incoherent and complex. Instead, we need wholesale reform as recognised by the Law Commission which included surrogacy in its current programme of reform. It promised a law that would deliver ‘clarity, modernity and protection for all the parties involved’. However, the ideal framework for this remains a matter of contention.
This article considers the benefits of a contract-based approach and suggests that this should be adopted in conjunction with two other significant changes, both drawn from the Greek surrogacy model. The first is a requirement for surrogacy to be pre-authorised by means of a license to verify the fully consensual, voluntary and fair nature of the agreement. Secondly, on obtaining such a license, legal parenthood should be allocated to the intended parents (‘IPs’) at birth, rather than the surrogate as is currently the case.
Antipathy towards surrogacy contracts
Whilst surrogacy contracts are not illegal, they have long been unenforceable in the UK. In 1984, the Warnock Report assumed that UK courts would treat such contracts as contrary to public policy, citing concerns over the exploitation of women and possible commodification of surrogate mothers and children. The right of the surrogate to have a change of heart and chose to keep the baby, was another fundamental reason why, in its view, a surrogacy agreement should never be enforced. The 1990 Human Fertilisation and Embryology Act formalised this position.
However, despite its unenforceability, the main surrogacy agencies in the UK use a surrogacy agreement of some form, acknowledging their importance in directing the parties’ minds to some of the obligations and potential pitfalls of the arrangement.
The case for contract
The term ‘contract’ has unfortunate connotations, invoking images of the cut-throat commercial world where profit is the bottom line, and when considering the moral standing of a surrogacy contract, the issues of commercial gain and enforceability are often conflated. But assuming that the altruistic model for surrogacy will continue, the ‘contract’ envisaged here, is simply the documentation of an arrangement.
Signed, written documents have long had a vital evidentiary purpose. They verify the intention of the persons who signed them which is what usually gives them legal force. The more important the document, the stricter the evidentiary requirements. Wills, for example, have to be signed and attested by two witnesses and advance decisions to refuse treatment must be in writing, signed by the person refusing the treatment (or at their direction) and attested by one witness. It seems strange, therefore, that there are no legal requirements to execute some form of document when it comes to one of the most consequential arrangements, that of creating another human being. If we acknowledge the legitimacy of intention as a basis on which to allocate parentage, surely there should be a reliable written record of that intention.
A written agreement would be strong evidence that the parties entered into a surrogacy arrangement for the purpose of creating a child for the IPs. This would avoid cases such as H v S (Surrogacy Agreement), where the terms of what was agreed between the parties about who would parent the child, were ‘highly contested’.
In addition, contractual discussions would facilitate better partnering between IPs and surrogates and the knowledge of legal enforceability will promote greater awareness and commitment of the respective parties. A 2013 survey of fertility clinics in the UK, revealed that the second and third most commonly reported problems experienced by fertility clinics in relation to surrogacy were the commissioning parents and surrogates ‘not having a clear understanding of or plans regarding legal issues, including Parental Orders’. Other problems cited include “No clear agreement between commissioning parents and surrogates regarding commissioning parents’ roles in pregnancy” and “No clear agreement between commissioning parents and surrogates regarding ‘reasonable expenses’”.
Traditional arguments against surrogacy contracts and the notion that a surrogates’ right to a change of heart should be protected, have been discredited, with empirical evidence demonstrating that most surrogates do not consider themselves a ‘parent’ of the child nor that they should have a right to a ‘change of heart’. Becoming a surrogate is (and should always be) completely voluntary, but if a woman choses to become a surrogate, the level of commitment expected from her should not be downplayed, nor should the vulnerability and investment (emotional, physical and financial) of the IPs be overlooked. Changes of heart should not be perpetuated by requiring the surrogate to consent to the transfer of legal parentage. Instead, parentage should follow intent and the IPs should be considered legal parents of the child as soon as he/she is born. A contract which is voluntarily signed by the parties who are fully informed of their respective rights and duties, provides the best evidence of their intention that the child is being created to be part of the IPs family and legitimises the legal allocation of parentage to them at birth.
The mechanics of a contractual framework
A contract-based model should require independent legal representation and certain mandatory clauses such as a declaration of intent, agreement as to abortion and medical screening, insurance provision for the surrogate and a schedule of expenses. Whilst some of these cannot be specifically enforced (such as termination or medical intervention), knowing that there may be financial repercussions for breach will bolster their significance. As to the essential agreement to hand over/accept parentage of the child, the parties are likely to only make these undertakings if they are resolute as they will know that they have the weight of the law to secure them.
Such a regime would instill legal certainty and clarity in an area engulfed in a fog of confusion. It would allocate parentage based on the clearly stated intentions of all parties and the negotiation, execution and enforcement of a detailed agreement would also foster better individual outcomes. Ultimately, a freely-negotiated contract is more likely to succeed and preserve a good relationship between the contracting parties, which is undoubtedly also in the child’s best interests.