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Surrogacy is an important option for reproductively challenged couples hoping to start a family, but strict laws surround it in the UK to protect the child, parents and surrogates, and for fear of its commercialisation. Dr Marilyn Crawshaw, Dr Eric Blyth and Dr Olga van den Akker describe the ethical issues with surrogacy, including exploitation.

 

Introduction

A lthough children have been born to surrogates in the UK for many years, the first legislation was not passed until the Surrogacy Arrangements Act 1985. This was prompted by the publicity surrounding the recruitment of a British woman, Kim Cotton, by a US commercial surrogacy agency and the fears, among other things, that commercial surrogacy represented the commoditisation of children.¹

Recent years have seen a resurgence of those fears, including for the human rights of women recruited into the growing number of international commercial arrangements (especially in developing countries such as India), potential adverse outcomes for the affected children, including the existing children of commercial surrogates, potential exploitation of the ‘commissioning’ parents (including among the growing numbers of gay male parents), and the rising amounts of money changing hands even within the UK.

 

What is surrogacy?

Surrogacy arrangements can involve either genetic or gestational surrogacy.
In ‘genetic’ surrogacy the child is the genetic child of the surrogate and (usually) the commissioning father. The surrogate is both the birth mother and the genetic mother. Although the insemination can involve medical intervention, it is more commonly undertaken informally between the parties involved.

In ‘gestational’ surrogacy the child has no genetic relationship to the surrogate but is usually the genetic child of at least one of the commissioning parents (and indeed this is required if in the UK – see below). This type of surrogacy will always involve medical intervention because it can only be used in conjunction with in vitro fertilisation (IVF). Hence, if it takes place in the UK, there is the involvement of a fertility centre licensed by the Human Fertilisation and Embryology Authority (HFEA).

In 2009, the HFEA lifted its previous guidance that surrogacy should only be offered where it was physically impossible or highly undesirable for medical reasons for the commissioning mother to carry a pregnancy.² No national figures are available on the involvement of licensed centres in surrogacy arrangements and in what circumstances, nor of links that UK-based centres may have with overseas centres offering surrogacy.

 

How do ‘commissioning’ parents become legal parents of the child?

Prior to the 1990s, the main route for transferring legal parentage of a child from the surrogate to those intending to raise the child (the ‘commissioning parents’) was through adoption. The Human Fertilisation and Embryology Act 1990 introduced provisions specific to surrogacy whereby commissioning parents could apply to a court for a Parental Order. The Act specified the eligibility criteria, subsequently extended by the Human Fertilisation and Embryology Act 2008.

Today, applicants must be married, in a same sex relationship or two persons living as partners in ‘an enduring family relationship’ and not within prohibited degrees of relationship to each other (there is as yet no definition of ‘an enduring family relationship’). In addition, applicants must be aged 18 or over, domiciled in the UK, Channel Islands or Isle of Man and at least one has to be a genetic parent of the child. The child has to be resident with them and the application must be made within six months of the birth.

Under UK law, the birth mother and her husband or civil partner (if she is married or in a civil partnership) are the legal parents, and their consent to making the order is required, regardless of their country of residence. This proves problematic where, for example, applicants use an overseas agency that withholds the identity of their surrogate from them.

Finally, only ‘reasonable expenses’ may be paid.³ Where the surrogate is unmarried and the child is the genetic child of the commissioning father and born in the UK, it is possible for him to be named on the birth certificate and thus afforded legal parental responsibility ahead of applying for a Parental Order.

In 2009, the Home Office UK Border Agency issued guidance setting out the conditions under which entry outside the Immigration Rules may be granted for children born overseas and subject to a Parental Order application that is considered likely to be granted.⁴

When an application is made for a Parental Order in England, Wales or Northern Ireland a social worker is appointed by the court as Parental Order Reporter and in Scotland either a social worker or a lawyer is appointed as Curator ad litem. Their task is to undertake investigations of the parties, determine that only ‘reasonable expenses’ have been paid and provide a report for the court based on paramount consideration to the welfare of the child.³ In other words, child welfare professionals are not involved until after the child has been born and is already living with the commissioning parents – unlike adoption, where involvement, including an assessment of the intending adoptive parents’ parenting capabilities, predates the child taking up residence with proposed adoptive parents.

Counselling and/or preparation for commissioning parents and surrogates prior to embarking on surrogacy arrangements may or may not be available. If UK fertility centres are involved, counselling must be offered whereas if the arrangement is an overseas or private one (i.e. ‘DIY’, including within families), it is possible that no such service is available. Regardless, there is no legal requirement for any formal assessment of parenting ability or routine checks in the case of a surrogacy arrangement. The same is true for those using surrogacy agencies.

In the UK, neither single persons nor couples where neither is a genetic parent of the child are eligible to apply for a Parental Order. While it may be possible in some overseas jurisdictions for a single person or a couple where neither is a genetic parent of the child to adopt the child in the country of its birth and then apply to bring the child to the UK, this introduces further uncertainty into the process and may involve an extended stay overseas.

 

How common is surrogacy?

The numbers of Parental Orders granted each year remained remarkably stable at between 33 and 50 over many years. However figures from the General Register Offices (GROs) for the four nations, i.e. England, Scotland, Wales and Northern Ireland, show that from 2008 onwards there was a sharp increase with numbers reaching 149 by the end of 2011.⁵

At the same time, there appeared to have been a downturn in the involvement of UK-based surrogacy agencies, suggesting more commissioning parents are ‘going it alone’ or using overseas commercial agencies – often utilising the internet, both to access information and to make necessary connections and arrangements. Given that UK-based agencies have a history of providing good support when arrangements are being made and in the years following, this is a concern.

Our recent study identified a lack of publicly available or systematically collected data about the incidence of Parental Orders and changes to the profile of surrogates and commissioning parents. No data are routinely kept, for example, across or within the GROs or the Child and Family Court Advisory and Support Service for England (Cafcass) about overseas involvement, or marital status or sexual orientation of commissioning parents. Neither are there mechanisms for tying up data on children brought into the UK where transfer of legal parentage was affected overseas.

 

Do children need to know of their surrogacy origins?

It is widely considered good practice for children conceived with donated sperm, eggs or embryos to be made aware of their origins from infancy onwards. Research suggests that risk to children’s health and well-being is thus minimised, providing parents are comfortable with their decision and employ child-centred approaches.⁶

Access to good quality biographical information about biological parents and any half or full siblings is also thought beneficial in helping parents and children integrate their origin’s story into their unfolding life story.⁷ Individuals subject to a Parental Order have the legal right to access their original birth certificate at age 16 (Scotland) or 18 (elsewhere in the UK), although this will not indicate whether the surrogate was also their genetic parent since such information is, unfortunately, not recorded on UK birth certificates.

Perhaps because of the greater difficulty in ‘hiding’ their child’s origins from others, early endorsement of openness from UK surrogacy agencies and the establishment of warm and ongoing relationships between some commissioning parents and surrogates, rates of disclosure among families formed through surrogacy appear higher than those following donor conception⁸ though some will undoubtedly maintain secrecy, including from health professionals.

 

When does it go wrong?

No data are kept on this. If arrangements break down before the child is born, they may never come to the attention of officials unless there are child protection or custody issues. When arrangements proceed smoothly, adverse consequences have not been widely reported, provided the baby is healthy and not disabled.⁷

In a recent study of Parental Order Reporters in England, the majority of families appeared to be functioning well although the reporters were uneasy about their late entry into the situation particularly where there was evidence of financial or emotional coercion, where the surrogate’s own children appeared adversely affected, where overseas arrangements had been involved and/or where large sums of money beyond ‘reasonable expenses’ had changed hands.^9-10 However, with a few exceptions¹¹ there is little or no longitudinal research.

 

The use of surrogates living overseas

The potential dangers of exploitation have been reported when commercial interests collide with the desire of childless couples to form a family and when significant economic disparity exists between the parties concerned.^7,12-14 The International Federation of Social Workers (2008) has warned of the need to monitor the global situation and fears have been expressed that the decline in intercountry adoptions may be fuelling the rise in global surrogacy.^15-16

In 2011 a ‘surrogacy ring’ was exposed in Thailand¹³ in which Vietnamese women, seven of whom were pregnant, had been trafficked for the purpose of acting as surrogates.¹⁷ Recent newspaper reports suggest significantly more children are being born in India’s rapidly growing commercial surrogacy industry to UK commissioning parents than appear in Parental Order applications.^18-19 If so, monitoring of their well-being is that much more difficult.

A recent practitioner guide for UK infertility counsellors drew attention to the difficulties faced by UK courts that need to be assured that:

1. overseas surrogates (and their partners, if married) have given informed consent to the transfer of legal parentage,
2. children born to overseas surrogates have access to her biographical details, identifying information and contact, should they wish it, and
3. commissioning parents are sufficiently well attuned to cultural and/or racial issues for incorporation into their parenting if using an overseas surrogate.³

Although there is no legal requirement to record country of origin or citizenship of adults in surrogacy arrangements, the Parental Order records we obtained suggested numbers are rising fast, especially from India and the USA, with perhaps as many as a quarter of Parental Orders granted in England involving overseas surrogates, up from 13 percent in 2010 and two percent in 2008.⁵

Our search of the Westlaw UK system revealed an increase in the proportion and number of ‘reported cases’ involving overseas surrogacy arrangements. Almost all cases involved issues associated with commercial surrogacy but several also included complexities arising from differences between the legal jurisdictions and between ethical, medical and psychological standards of care. These included multiple embryo transfer, mixing of embryos formed with the surrogate’s oocytes and those of donors, and use of two surrogates simultaneously carrying a pregnancy for a commissioning couple and giving birth within days of each other. Such concerns have led to recent recommendations for international conventions governing international surrogacy.²⁰

 

Payment or ‘reasonable expenses’ – is there a difference?

Commercial surrogacy is banned in the UK but there remains considerable blurring about what is ‘payment’ and what are ‘reasonable expenses’. Interpretation by Parental Order Reporters can be varied with no formal guidance available; ‘expenses’ that include foreign holidays for the surrogate and family, rent/mortgage payments, regular monthly payments, payments towards Christmas presents or private education for the surrogates’ children or university fees for the husband of a surrogate have not always been reported to the courts; and suggested standard rates of £10-12,000 set by UK surrogacy agencies have been accepted as a benchmark.⁹

Although judges have made clear their disapproval of ‘payments as fees’,²¹ Parental Orders have nevertheless been granted where breaches have occurred on the grounds that the child’s welfare is best met by them continuing to be cared for by the commissioning parents.

 

Summary

This article has focussed in particular on the risks for all parties associated with the commercialisation of surrogacy and the growing use of overseas arrangements and supports the need for a review of such aspects. As numbers of surrogacy arrangements rise so will the involvement of those providing ante- and postnatal care and hence their need to be alert to such issues.  

 

References

1. Cotton K. and Winn D. (1985) Baby Cotton: For Love and Money London, Dorling Kindersley
2. Human Fertilisation and Embryology Authority (2009) Code of Practice Eighth Edition with updates to 2012 http://www.hfea.gov.uk/code.html accessed 23 May 2012
3. Baron J., Blyth E., and Haigh A (2012) Counselling and Surrogacy in Licensed Clinics in the UK 2nd edition York, BICA Publications
4. Home Office UK Border Agency. Available at: www.ukba.homeoffice.gov.uk/policyandlaw/guidance/ecg/set/set7/set7-24/
5. Crawshaw M., Blyth E. and van den Akker O. (2012b) ‘The changing profile of surrogacy in the UK – Implications for national and international policy and practice’ Journal of Social Welfare and Family Law vol 34:3 265-275
6. Blyth E, Crawshaw M, Frith L and Jones C (2012) ‘Donor-conceived people’s views and experiences of their genetic origins: a critical analysis of the research evidence’ Journal of Law and Medicine 19(4) June 769-789
7. van den Akker O.B.A (2007) ‘Psychosocial aspects of Surrogate Motherhood’  Human Reproduction Update 13, 1, 53-62
8. Readings J, Blake L, Casey P, Jadva V and Golombok S (2011) Secrecy, disclosure and everything in-between: decisions of parents of children conceived by donor insemination, egg donation and surrogacy Reproductive BioMedicine Online, doi: 10.1016/j.rbmo.2011.01.014
9. Crawshaw, M., Purewal, S. and van den Akker, O. (2012a) ‘Working at the margins: The views and experiences of court social workers on Parental Orders work in surrogacy arrangements’ British Journal of Social Work doi:10.1093/bjsw/bcs045
10. Purewal S, Crawshaw M and van den Akker O (2012) ‘Completing the surrogate motherhood process: The experiences of Parental Order Reporters’ Human Fertility 15(2); 94-99
11. van den Akker O.B.A. (2005) ‘A longitudinal pre pregnancy to post delivery comparison of Genetic and gestational surrogate and intended mothers: Confidence and Gynecology’  Journal of Psychosomatic Obstetrics and Gynecology, 26, 277-84.
12. Pande A., (2009) “‘It may be her eggs, but it’s my blood’: surrogates and everyday forms of kinship in India” Qualitative Sociology 32, 4, 379–397.
13. Palattiyil G., Blyth E., Sidhva D. and Balakrishnan G. (2010) ‘Globalisation and cross-border reproductive services: ethical implications of surrogacy in India for social work’ International Social Work  53, 5, 686-700.
14. Whittaker A (2011) ‘Cross-border assisted reproduction care in Asia: implications for access, equity and regulations’ Reproductive Health Matters 19, 37, 107-116
15. International Federation of Social Workers (2008) Cross Border Reproductive Services  http://ifsw.org/policies/cross-border-reproductive-services/
16. Rotabi K.S. and Bromfield N.F. (2012) ‘The decline in intercountry adoptions and new practices of global surrogacy: global exploitation and human rights concerns’ Affilia: Journal of Women and Social Work 27, 2, 129-141
17. ABC News (2011) Women freed from ‘inhuman’ baby ring. 25 Feb http://www.abc.net.au/news/stories/2011/02/25/3148396.htm?section=world
18. Bhatia S. (2012) ‘Revealed: how more and more Britons are paying Indian women to become surrogate mothers’ 26 May The Telegraph http://www.telegraph.co.uk/health/healthnews/9292343/Revealed-how-more-and-more-Britons-are-paying-Indian-women-to-become-surrogate-mothers.html
19. Jones D. (2012) ‘The designer baby factory’ 5 May The Daily Mail http://www.dailymail.co.uk/news/article-2139708/The-designer-baby-factory-Eggs-beautiful-Eastern-Europeans-Sperm-wealthy-Westerners-And-embryos-implanted-desperate-women.html
20. Malynn D. (2012) Event Review: Assisted Reproduction and Surrogacy – A Modern Approach to Parenthood or Brave New World? http://www.bionews.org.uk/page_131913.asp
21. Blackburn-Starza, A. (2010) ‘Child’s welfare is ruled ‘paramount’ in surrogacy case’ BioNews http://www.bionews.org.uk/page_83861.asp)