Disclaimer: The views expressed are that of the individual author. All rights are reserved to the original authors of the materials consulted, which are identified in the footnotes below.
By Shayahi Kathirgamanathan Section Editor for Medical Law & Ethics
California is regarded as one of the most ‘surrogacy-friendly’ jurisdictions internationally and has developed a ‘thriving industry’ of commercial surrogacy.[1][2] Intended parents (IPs) seeking out surrogate mothers will travel great distances to avail themselves of the Californian system for multiple reasons, including its liberal attitude towards non-traditional parents like LGBT couples and singles, high-quality healthcare, and birthright citizenship. [3] But the most significant attraction is the law on surrogacy, which is much more progressive than other systems. Even IPs from the UK have utilised Californian surrogacy, and several cases have borne out of such agreements, including Re W and Whittington Hospital NHS Trust v XX.[4][5] This article aims to dissect the differences between the UK and California’s law on surrogacy by contrasting their approaches to legal parentage, the enforceability of agreements, and commercial surrogacy.
Legal parentage and enforceability
Surrogacy in the U.S is not determined by federal law, so regulations will vary from state to state. In California, section 7692 of the California Family Code (CFC) sets out strict guidelines for creating legally binding surrogacy agreements.[6] If the agreement adheres to these guidelines, which involves specifying the date of execution, identity of the parties, and disclosure of how medical expenses will be paid for, then it is deemed presumptively valid.[7] IPs can also obtain a pre-birth order in court, laid out in Section 7962(e) of the CFC, which establishes the parent-child relationship as to a child conceived pursuant to the agreement.[8] As long as the agreement is found to be compliant, in particular by clearly expressing an intent to parent, the order will affirm the agreement and provide an additional level of certainty to all parties.
Contrastingly, in the UK, surrogacy agreements are unenforceable according to s.1A of the Surrogacy Arrangements Act 1985. While parties are free to enter agreements, there are no resulting legal obligations; neither the surrogate or the IPs can sue for damages or payment. Furthermore, to acquire legal parentage, the IPs have to either adopt the child, or more commonly, obtain parental orders. Parental orders are court orders which transfer legal parentage from the surrogate to the IP(s). IPs can only apply for these post-birth, and courts can only grant them 6 weeks after birth, due to a cooling-off period given to the surrogate in case she withdraws consent. Therefore, the Californian model offers IPs with reassurance during pregnancy that they will be the legal parents, while UK IPs must wait until birth, and are faced with the possibility of an ensuing legal battle over parentage if the surrogate refuses to consent. The outcome of such a case will be based on the best interests of the child.
The advantages of the Californian approach towards legal parentage and enforceability are illustrated by the case of Johnson v Calvert.[9][10] Here, a surrogate attempted to renege on a contract with the genetic IPs by demanding immediate payment of fees and threatening to keep the child. The Californian Supreme Court held that the claims of gestational and genetic mothers were both supported, but the key determination was the intent of the parties.[11] As the agreement showed that it was the genetic mother who “had intended to bring about the birth of a child that she intended to raise as her own”, she was deemed the natural mother. [12] [13] A similar case in the UK concerning a conflict over parentage would not have heeded any agreements between the parties, but would have made the decision based on the best interests of the child according to the welfare principle. This would have involved an examination of whether the surrogate or the IPs would be best equipped to take care of the child, and who would be best placed to promote the relationship of the child with the other party. Given the surrogate’s behaviour, a UK court would probably also rule that the child should ultimately remain with the IPs. While the result would be the same, it is likely that there would still be much more distress involved in the process for UK IPs over uncertainty concerning the judgement’s outcome.
Although the Californian model provides legal certainty, the intent test has been criticised by Demopoulos, who argues that it poses a ‘real risk of damage to children’, and that the best interests test should be utilised instead.[14] He refers to the case of Cook v Harding for support, where IP became worried that he would not be able to take care of the three implanted embryos.[15][16] The surrogate mother then sought parental rights, but the court still awarded custody to the IP on the basis of the contractual agreement- despite, Davis notes, ‘lack of financial resources, his disability, [and] the difficulty of raising three children as a single parent’. [17]Cast in this light, the UK’s use of the best interests for conflicts over legal parentage can be viewed as possibly burdensome to IPs, but a necessary hurdle to protect children.
Commercial surrogacy
Commercial surrogacy can be defined as ‘the buying and selling of surrogacy arrangements on a market’. [18] In California, commercial surrogacy is permitted (alongside altruistic surrogacy), and the CFC sets out how client funds must be held and distributed. [19] Beyond the cost of fertility treatment and egg donation, there is payment to the surrogate, as well as fees paid to specialist attorneys and surrogacy agencies. Overall costs range from $75,000 to $120,000, so surrogacy is only a realistic option for wealthier individuals or couples.[20]
The UK has an altruistic framework of surrogacy, meaning that commercial surrogacy is prohibited domestically. ss.2-3 of the SSA makes it a criminal offence for anyone to negotiate surrogacy on a commercial basis. This is intended to target agencies and for-profit organisations, rather than the intended parents and surrogate. Only compensation for ‘reasonable expenses’ is allowed, which includes pregnancy-related expenses and clinic fees. Thus, the average cost of surrogacy in the UK typically ranges from £12,000 and £15,000. If payment occurs outside the scope of reasonable expenses, it must be retrospectively authorised by the court in order to grant a parental order.
In practice, courts tend to retrospectively authorise what ought to be prohibited payments, on the view that this is what would be in the child’s best interests. For instance, in Re A, B and C (UK surrogacy expenses), a recuperation holiday for the surrogate was regarded as a reasonable expense.[21] In Whittington, the Supreme Court held that awards of damages for foreign commercial surrogacy were no longer contrary to public policy, as they were held to be in Briody. [22] Do such cases constitute a progressive backdoor acceptance of commercial surrogacy?
If so, the Californian approach of outward acceptance would be preferable to the practice occurring behind closed doors, beyond the reach of the law where it cannot be regulated. However, Horsey and Powell doubt that Whittington acts as an endorsement for commercial surrogacy, as any development towards acceptance is tightly circumscribed by limitations that the foreign arrangements and costs are reasonable.[23] Moreover, the Law Commission has not included any reference to domestic commercial surrogacy agreements in its consultation report. Rather, UK courts’ lenient approach towards expenses is a necessity to grant parental orders, and by doing so, address the care of an existing child. Therefore, it cannot be said that the UK is moving towards the Californian model, at least in the near future.
Views on whether the UK or Californian approach is preferable is dependent on attitudes towards commercial surrogacy generally. On one hand, it may be opposed due to the perception that the surrogate is renting her womb, or that the baby is sold as property. Some also believe that it is ‘degrading to convert a woman’s personal ability to gestate a child into the public function of gestating a stranger’s child as a service available to anybody who will pay’.[24] Arguments concerning the danger of economic exploitation are perhaps more forceful in countries with lower-income populations like India, but it still holds water in California. For instance, it has been pointed out that owing to poor pay, military wives constitute a disproportionate number of surrogates in the U.S. [25]
On the other hand, one could argue that women should be able to make decisions concerning their own bodies, and should not be held back by the state. Those who conceive of dignity as empowerment, rather than constraint, would support self-determination and increased reproductive choices. But if a woman has little option but resort to surrogacy to support herself and her family, to what degree is her decision truly an expression of free will? Some have responded by contending that this is no different to undertaking any other form of labour under a capitalist system. [26]
Should the UK move towards a Californian model?
The Law Commission has identified the deficiencies of the UK’s Surrogacy Act 1985 in its Consultation Paper, and has proposed reforms which would shift surrogacy law in the UK towards a more liberal direction. One reform is a new pathway enabling IPs to be legal parents from birth, subject to meeting particular requirements and the surrogate’s right to object during a cooling-off period.[27] Arguably, this would be an improvement on the Californian model; not only would it incorporate the element of beginning the acquisition of legal parenthood pre-birth, it would also involve more stringent checks on the potential child’s welfare. Another proposal is the creation of regulated surrogacy organisations, which would enable better support of IPs, as is the case in the Californian model.[28] However, it remains to be seen whether the reforms will come to fruition. While the UK would benefit from these reforms, which would bring it closer to the Californian approach, it is submitted that the UK’s prohibition on commercial surrogacy is preferable. Even though this will presumably mean fewer surrogates, this is not outweighed by the danger of economic exploitation. Pregnancy is a unique process that can carry a heavy toll on the individual in terms of physical and mental health; much like the sale of organs, we ought to draw the line at commercialisation.
Conclusion
From the perspective of IPs, the benefits of the Californian approach are clear. Sir Robert Nelson succinctly summarised them as such: “the system is well-established, the arrangement [is] binding and the intended parents can obtain a pre-birth order from the Californian court confirming their legal status in relation to the surrogate child”.[29] From the perspective of the child, UK law may be preferable as it is much more strict concerning the issue of welfare. The possibility remains in both systems that a surrogacy agreement could pass undetected by law, but this is largely unavoidable. The reforms suggested by the Law Commission would go some way in alleviating concerns, and making surrogacy law in the UK law more progressive.
[1] Seema Mohapatra, ‘States of Confusion: Regulation of Surrogacy in the United States’ in Jean-Daniel Rainhorn, Samira El Boudamoussi (eds), New Cannibal Markets: Globalization and Commodification of the Human Body (Éditions de la Maison des sciences de l’homme, 2017). [2] Kirstey Horsey and Andrew Powell, ‘A Step Too Far? Whittington Hospital NHS Trust v XX [2020] UKSC 14’ (2020) MLR 1, 3. [3] (n 1). [4] [2013] EWHC 3570 (Fam). [5] [2020] UKSC 14. [6] Stephanie M. Caballero, ‘Gestational Surrogacy in California’ in E. Scott Sills (ed), Handbook of Gestational Surrogacy: International Clinical Practice and Policy Issues (Cambridge University Press 2016), 296. [7] ibid, 298. [8] ibid, 299. [9] 5 Cal. 4th 84 (1993). [10] (n 6), 297. [11] Mark Rose, ‘Mothers and Authors: Johnson v. Calvert and the New Children of Our Imaginations’ (1996) Critical Inquiry 613, 617. [12] ibid. [13] (n 9), 500. [14] Matthew Demopoulos, 'Surrogacy in California: Replacing Section 7962 of the California Family Code with a Two-Part Hybrid Best Interests Test' (2018) 51 UCD L Rev 1751, 1780. [15] 190 F. Supp. 3d 921. [16] (n 14), 1767. [17] ibid. [18] Nathan Hodson, Lynne Townley, Brian D Earp, ‘Removing Harmful Options: The Law and Ethics of International Commercial Surrogacy’ (2019) 27 MLR 597, 598. [19] (n 6), 298. [20] (n 1). [21] [2016] EWFC 33. [22] (n 4). [23] (n 2), 12. [24] (n 18), 602. [25] (n 18), 612. [26] (n 18), 603. [27] Law Commission, BUILDING FAMILIES THROUGH SURROGACY: A NEW LAW (244, 2019). [28] ibid. [29] (n 4), 22.
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