Surrogacy law in the UK - Is change overdue?

International and UK regulations have simply not kept up with the reality of surrogacy
Determining parenthood is a complex business. When paternity tests revealed that the child Stephen Quinn had raised as his own was in fact the biological offspring of David Blunkett, Quinn attracted palpable sympathy with his declaration: "I will not draw a distinction between biological and non-biological – we are not buying Persil or Daz."

But the complexity of determining paternity pales in comparison to the question of maternity. In the rapidly expanding world of surrogacy births, up to three women can have competing claims to be mother of a newborn child: the birth mother, the egg donor, and the intended parent (or "commissioning mother", as she is prosaically called). The one thing upon which the wildly opposed different groups agree is the fact that the courts – increasingly called on when surrogacy agreements break down – do not have the right tools to resolve them.

The most recent example came in a surrogacy dispute that was decided last month in Birmingham county court. A couple who could not have children had met a surrogate mother in an internet chatroom. She was inseminated with the man's sperm and agreed to hand over the child after birth. In a not uncommon outcome for informal surrogacy agreements, she changed her mind during the course of the pregnancy as her attachment to the child grew.

And in another fact not unrepresentative of wider trends, the case was complicated by the fact that both the would-be parents and the surrogate were avid users of surrogacy websites and chat-rooms. The would-be parents had met another woman, alleged to be a prostitute, on a surrogacy website and allowed her to stay in their home. On her part, the surrogate had adopted a false persona online and deceived the couple to elicit information about them. Both incidents, the judge said, raised questions about the sound judgment of each side, a particular matter of concern for a court trying to determine which side would be more likely to provide the atmosphere of safety, love and guidance needed to raise a child.

It's hard to criticise the findings of the judge, Sir Jonathan Baker, in this case: he allowed the child to stay with the surrogate, finding separation from the woman who was still breastfeeding her to be the greater measure of harm. His view reflects the legal position in the UK, that "mother" is the label given to any woman who gives birth to a child, whether or not she is a genetic relation.

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