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Internet puts surrogacy back on agenda

1 February 2011

Changes to surrogacy laws could return to the parliamentary agenda after a ruling last week upholding a surrogate mother’s decision not to hand over a baby that left the prospective parents childless and £4,500 out of pocket.

Ruling in CW v NT [2001] EWHC 33 (Fam), Mr Justice Baker said the welfare of the baby girl, known as T and now five months’ old, required her to remain with the surrogate mother.

Mr and Mrs W met the 25-year-old mother after posting a note on a surrogacy website. They entered into an informal agreement with her and she later became pregnant with Mr W’s child. Some time after becoming pregnant, however, she changed her mind and refused to hand over the baby.

Although the law prohibits any kind of commercial transaction it is possible to pay the surrogate for expenses reasonably incurred and the Ws paid the mother £2,000 and a further £2,500, and bought maternity clothes and other items. Parents in the Ws’ position would normally apply for a parental order but because the surrogate mother’s consent is required this option was not available and Mr W applied for a residence order.

“A number of agencies have been set up to facilitate surrogacy arrangements by making appropriate introductions, and providing advice and counselling to the parties,” Baker J said.

“Inevitably, however, the advent of the internet has facilitated the making of informal surrogacy arrangements between adults. In such cases, those entering the arrangement do not have the advantage of the advice, counselling and support that the established agencies provide.”

Alison Millar, partner at Leigh Day specialising in medical ethics, said agencies played an important role but that the current system was “an unhappy halfway house”.

She said that making surrogacy agreements enforceable would be “unlikely and undesirable”, but the case has crystallised a number of increasingly public issues and it was likely there would be growing pressure on parliament to intervene. Millar also said there was a danger that unregulated surrogacy websites did not attract the kind of people that were suitable for surrogate motherhood, a concern shared by Sam King, a barrister specialising in family and life science.

“New technologies have changed the way people interact and the internet has allowed for a more informal approach to surrogacy where agencies would, until now, have acted as the natural channel,” she said.

According to King, although the judge was not critical of the fact the mother had been paid, the ruling highlighted the tension in surrogacy law.

“Not only are surrogacy agreements not enforceable, but solicitors cannot even advise on the terms of a surrogacy agreement,” she said. “People are thrown into a situation where they have to negotiate the terms themselves; there should be a system where people can obtain formal advice on these issues.”

Louisa Ghevaert, fertility and parenting law expert at Gamble and Ghevaert, said it was very rare for surrogate mothers to have a change of heart, particularly where conception took place at HFEA-licensed clinics. But she agreed surrogacy had changed since the 1985 Surrogacy Act came into force.

“It wasn’t geared up for the increasing interest in surrogacy promoted by the advent of the internet, celebrity endorsement and greater media coverage,” she said.

“In practice the law has worked well but there needs to be fresh consideration of society’s views over issues surrounding contract, payment and consent.”

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