Legal Issues, In a case about access to surrogacy when fertility lost in medical negligence:
Factors:
Right to found a family - Article 12 of EUropean Convention of Human Rights Right to family life - Article 8 - Less binding here
Redress - Right to compensation for negligence
Autonomy - Her self determination to ask for surrogacy. Her surrogates right to self determination.
Commodification - Her desire to go to USA where contractual arrangement is made. Commercialism issues
Law Re: Surrogacy
The children act in section 1.1 has the child as the primary concern in any issue approaching the court.
So if the children act is relevant, the child needs to come first in surrogacy questions.
Other relationships in consideration: Biological Mother (Surrogate), Father (Sperm), Commissioning Parents (Maybe using their own sperm or eggs)
Social Set Up
Family structures are changing
Fertility is changing, the value of fertility is personally and socially important
In law it doesn't get discussed until somethings gone wrong.
The Bigger Picture
The most heavily critiqued aspect of reproductive treatment.
The relationship between conception and the arrangement around that conception
There is an arrangement between the surrogates and the conception.
Legally the arrangement comes first in the UK.
Historically things like adoption were very private arrangements.
It brings up questions about:
- Power and gender dynamics - The patriachial construct of the family
- Cultural - Legitamacy and "male heirs"
- Religious - Adultery (a child outside the union)
- Parents - Who are the parents? when does that parenthood begin?
- Registration - Falsifying the parenthood on documentation
Surrogacy Arrangements Acts 1985
Before the Act
In the 70's and 80's they were talking about "the host mother"
One of the key cases in 1978, the couple commissioned a sex worker. This was highlighted in the press, and put the family on a "higher" social standing than the surrogate.
The baby cotton case in 1984, a woman was carrying a baby for an american child. Press at time was very negative, focused on selling a child, and the idea of "abandoning a child".
The Act
Motivated by the social backlash of the cotton case.
Talks about "carrying a child with the intenntion of handing it over"
The warnock review talked about "carrying a child and handing them over at birth"
Gillian Douglas says this act is so private, we don't really know whats going on in the UK (then or now)
Questions Raised
- How do you licence surrogacy?
- Parenthood? VS Adoption?
- You have all these representatives in the arrangement for the parents and the surrogate, but none for the child
What are acceptable mechanisms?
IVF? Surrogacy?
What technologies are allowed? What questions are raised? - Attempted to be answered by the Warnock report
The Brazier review
- Wanted an independent organisation to regulate surrogacy
- Wanted remunaration/compensation for surrogate mothers
In the legal status currently, the person who gives birth IS the mother. If the surrogate changes their mind they will not be forced to keep to contract by law.
As the warnock report found these contracts to be unenforcable, they recommended should be illegal.
The report highlighted the risks to the surrogate also. Is this exploitation of the woman.
The warnock report is very negative on ethics of surrogacy, describing it as "distorting relationships", the "wrong way to approach pregnancy", and "degrading to the child"
It argues it's degrading for the woman and the womans "human dignity" to "be an incubator for someone else's child"
HFEA
There is a code of practice
Section 8 - wants proper account taken of the welfare of any child who may be born, and any other child who may be affected by the birth.
1985 Act
The brazier review gave the act our current definition of surrogacy