Surrogate mothers - Should they have the right to change their minds?

Natalie has written a comment piece for Bionews criticising the unchallengeable position surrogate mothers are currently given by UK surrogacy law. The law in the UK has long provided that the woman who gives birth is the legal mother. In surrogacy cases, the intended parents (one or both of whom must be the biological parents) can apply to the family court to have parenthood reassigned to them, but they are entirely dependent on the surrogate and her husband/civil partner giving their consent. If it is withheld, they cannot become the legal parents. Conversely, if the intended parents do not take responsibility, the surrogate has no means of holding them both legally responsible for the life they have created. Natalie criticises the law as being outdated in a modern age in which surrogacy is becoming more common. Very few arrangements do go wrong (a proportion of roughly 0.02%) and where things run to plan, the current law means that parental responsibility is left in the wrong hands for far too long, contrary to everyone’s wishes and the best interests of the child. In the rare cases where things go wrong, the courts in practice decide care arrangements flexibly on a best interests basis, but legal parentage can remain unresolved forever. It is time for us to introduce law which deals with surrogacy in a much more sophisticated way, understanding that it is a collaborative process in which the rights and responsibilities of everyone involved – the surrogate, her partner, the intended parents and the child – all need to be carefully balanced. This is what both surrogates and parents want, and what is in the best interests of children born through surrogacy. You can read Natalie’s comment piece Should surrogate mothers still have an absolute right to change their minds? or find out more about surrogacy law from our website. Article: 23rd October 2012 www.nataliegambleassociates.co.uk

Your surrogate will keep the baby, won't she?

So many clients tell us that this is the question they are asked when they tell their friends – and even their fertility doctors – that they are considering surrogacy. Is it true? Are surrogacy arrangements in the UK very risky, with the surrogate mother holding all the cards and having an absolute right to keep the baby? Do those who embark on surrogacy arrangements frequently end up with the surrogate mother keeping the child in practice?
It is certainly a widespread belief, and one which in the globalised world is an important factor which drives people abroad to surrogacy destinations like the USA, the Ukraine and India, where surrogacy arrangements are legally enforceable.

But the reality is that this is in fact incredibly rare in practice. To date, there have been only two reported cases in UK legal history of the court having to arbitrate between the intended parents and a surrogate mother where a surrogacy agreement has broken down. In only one of these cases was the surrogate allowed to keep the baby, since the UK courts (far from being obliged to uphold the status of the surrogate mother) in fact have flexible powers to determine what is in the child’s best interests where something does go wrong.

So why do surrogacy arrangements in the UK so rarely go wrong? Our experience of working with families in these situations tells us that it is because surrogacy is not entered into by parents or surrogates lightly, but with the benefit of enormous care, thought and respect. Often with the help and support of long established and experienced agencies like Surrogacy UK and COTS, we find that parents and surrogates invest heavily in building a strong foundation to their relationship, and treat it with significant value.

The reality of surrogacy in the UK is that arrangements far more often end up in a lifelong friendships than in custody disputes