Surrogacy and the law

By Legal Eagle

There have been a few stories in the news lately about surrogate parents. Elton John and his partner became parents via a surrogate mother at the end of last year. Of course, as they are gay men, the child was conceived with the use of a donor egg. Nicole Kidman and Keith Urban recently became parents for the second time via a “gestational carrier” in the US – the child was genetically theirs but carried to term by a woman who was paid to do so. As Tracey Spicer notes in this piece in the Courier Mail, the use of the term “gestational carrier” in Kidman’s press release was probably a mistake:

This is the technical term for a woman who carries an embryo she has no genetic relationship with. But its use is a PR disaster.

It conjures images of a post-apocalyptic Blade Runner future where evil corporations run factories full of wombs-for-hire.

It is such an emotional area. My daughter was asking me, “When did you start to love me?” I told her that I loved her and Eaglet No. 2 even when they were in my tummy. “Why?” questioned my son. Good question. Because I grew them in me and nurtured them, because they were mine, because they already had their own personalities. Eaglet No. 1 was the kickiest baby ever (which reminds me: I must enroll her in soccer classes). Eaglet No. 2 was much calmer (and he still is). Would I be able to be a surrogate mother? I think I’d find it really difficult because I am a very emotional person, and I don’t think I’d be able to help bonding with the child, even if it wasn’t genetically mine. But who knows? If my sister had problems carrying a child, I might consider it. Or if I were very poor, and surrogacy was a way in which I could pay for my children’s education and food, I might also consider it.

Nonetheless, the idea of paying a third world woman to gestate my child makes me uncomfortable – there seems to be an exploitative aspect to such a relationship. On the other hand, if the woman enters into such an agreement willingly, if she can better provide for her own children as a result, and if she brings great joy to a childless couple, is surrogacy so bad? There are plenty of stories in the news about happy surrogacy arrangements including a gay father who used a surrogate mother in US and a heterosexual married couple who used a surrogate mother in India.

On the other hand, there are some cases where surrogacy has not worked so well. The famous “Baby M” case in the US many years ago was one instance. In that case, a woman named Mary Beth Whitehead entered into an agreement to carry a child for a couple, the Sterns, where the wife had multiple sclerosis. Whitehead was artificially inseminated with the husband’s sperm. Once the child was born, Whitehead refused to give the child up to the Sterns. A protracted court battle ensued, and while Baby M lived with the Sterns, Whitehead was given parental and visiting rights. Interestingly, Baby M eventually chose the Sterns as her parents, not her biological mother.

These kinds of problems can arise with surrogacy arrangements. As if on cue, I saw this story the other day posted by @GdnLaw on Twitter, where a UK surrogate mother has won the right to keep the child which she carried to term. The Guardian reports:

A surrogate mother who changed her mind about giving her baby to a couple will be allowed to keep her, a judge ruled…

After getting married in 2005, Mr and Mrs W were unable to have a baby following a series of miscarriages.

The mother and the couple…met over the internet in 2009 and made an informal agreement that a baby, fathered by Mr W, would be handed over once born.

During the pregnancy the surrogate mother changed her mind and refused to part with the baby when it was born last July.

Mr Justice Baker said the now six-month-old baby, identified only as T, had bonded with her mother. “In my judgment, there is a clear attachment between mother and daughter,” he said. “To remove her from her mother’s care would cause a measure of harm. It is the mother who, I find, is better able to meet T’s needs, in particular her emotional needs.”

During the surrogate pregnancy relations between the trio deteriorated and legal proceedings were launched a week after the birth. Although the judge said he had “formed the clear impression” that all parties were devoted to the baby, he said it was also clear that the baby was “thriving in her mother’s care.”

The couple had proposed to take over care of the baby immediately, which the judge said showed a “startling lack of insight” of the child’s needs.

Speaking on the risks of entering into surrogacy agreements, the judge said these were “very considerable.”

“In particular, the natural process of carrying and giving birth to a baby creates an attachment which may be so strong that the surrogate mother finds herself unable to give up the child,” he said.

A further hearing is set for next month with an “interim visiting contact” between the natural father, Mr W, and the baby.

The New South Wales Parliament has just introduced laws which will outlaw overseas surrogacy arrangements. The second reading speech stated, inter alia:

Commercial surrogacy will remain a criminal offence and surrogacy arrangements will remain unenforceable, as is currently the case under the Assisted Reproductive Technology Act 2007. This offence aims to prevent the commercialisation of human reproduction. As the Standing Committee of Attorneys-General noted in its 2009 discussion paper, “commercial surrogacy commodifies the child and the surrogate mother, and risks the exploitation of poor families for the benefit of rich ones”. However, a new provision has been inserted to implement a recommendation of the Legislative Council standing committee. This will allow parties to enforce an obligation under the arrangement to pay the birth mother’s reasonable surrogacy costs. Those costs include the reasonable costs of becoming or trying to become pregnant, as well as the costs of a pregnancy or birth, or a surrogacy arrangement. A list of costs that meet this description is included for the sake of clarity. Advertising in relation to commercial surrogacy will remain an offence, and will be extended to altruistic surrogacy arrangements where the advertisement is made for fee or reward. Such advertisements may increase the risk of surrogacy arrangements that are, in fact, commercial. For advertisements about altruistic surrogacy, a lower maximum penalty will apply due to the lesser seriousness of such advertisements. This bill is an important step towards creating legal certainty for people who turn to surrogacy arrangements because they are otherwise unable to have children, and towards protecting the interests of children born into surrogacy arrangements. It is also intended to encourage those who turn to such arrangements to follow processes designed to ensure they thoroughly understand the psychological, social and legal complexity of their decisions, and the lasting impact those decisions will have on the child yet to be born.

(Via Stephen Page’s Australian Gay and Lesbian Law Blog)

I find it hard to make definitive judgments in this area. I wouldn’t outlaw surrogacy altogether, nor would I allow it in all circumstances. It does have to be regulated. And I’m still not sure about the ethics of overseas surrogate mothers. The main thing is to make sure that any people who do enter into surrogacy contracts are totally aware of the risks of the arrangements they are entering into, so that cases like the UK one and the Baby M one do not arise. I also think it’s preferable that a child have information about his or her genetic parents if possible.

22 Comments

  1. Liam
    Posted January 25, 2011 at 10:24 am | Permalink

    The NSW laws outlaw commercial surrogacy arrangements, not all surrogacy. What’s getting lost in the Kidman coverage is that they make recognition of altruistic surrogacy easier.
    Worth noting in the discussion also is the Australian NHMRC’s ethical guidelines around surrogacy and ART—they’re very clear that commercial arrangements for surrogacy are medically unethical.

  2. Posted January 25, 2011 at 11:43 am | Permalink

    I think this is one example of law, in discussions both in parliaments and professional circles, has allowed itself to fall too far behind the capabilities of technology, and needs some mechanisms of being ahead of the game. (Imagine if law was as slow dealing with the advent of the motor car).

    Technical capabilities are getting into areas that touch deep emotions and fundamental ethics – reaching or even going beyond the powers traditionally ascribed to the gods.

    While we aren’t quite up to Zeus’ trick with Athena, carrying a pregnancy to term, even that is becoming technically possible (no uterus required – something like an ectopic pregnancy with placenta attaching to the gut and delivered by abdominal incisions rather than Zeus’ delivery from the forehead). How long will it be before this approach becomes safe enough for a gay couple to attempt it, even using a denucleated ovum with genetic contributions from both fathers?

    Surrogacy arrangements are really a special case of use of organs by another – donation from live patients of kidneys, bone, marrow, etc. The legal approach to financial arrangements should be the same.

    Should a donor wear the costs, and loss of income, when giving a kidney? What about the months where employment is impractical, before and after delivery?

    Is there a mechanism the legal profession could put in place to prepare for technical advancement, prepare position papers in consultation with scientists *before* the technologies become available, particularly in biological matters that touch deep emotions?

  3. desipis
    Posted January 25, 2011 at 11:47 am | Permalink

    It’ll be interesting to see if our culture can move on from the focus on a nuclear family (two parents plus children) to a more flexible understanding where the genetic parents and a surrogate mother could work together on parenting. Where a parent is someone with a responsibility and commitment to a child that isn’t predicated on exclusivity, rather than someone who insists of rights and control.

  4. Liam
    Posted January 25, 2011 at 12:00 pm | Permalink

    Well desipis those kinds of surrogacy arrangements have always existed. There’s nothing stopping three (or more) adults from making an informal arrangement to share parenting.

    Dave, I disagree entirely. The new thing about commercial surrogacy through ART is that it’s a form of commercial trade which can’t exist without a legal basis of transferring custody of the child ie. the law around the legal identity of a person. It’s that making of babies-into-commodities, and the potential of the trade to be exploitative of poorer, desperate mothers, that are the ethical stumbling blocks—it’s nothing about the technology.

  5. desipis
    Posted January 25, 2011 at 12:18 pm | Permalink

    Liam, I’m sure they do informally exist, but is it possible to have legal rights over health, education and so on granted to all three (or more) adults? Are the family courts capable of granting joint custody or visitation rights across more than two adults?

    I’d add to your reply to Dave that it’s difficult to anticipate all the uses of technology or the ethical implication of those uses before they happen. Sometimes it’s takes something to happen before we can look and say: “there’s something not right about that”.

  6. Posted January 25, 2011 at 12:21 pm | Permalink

    This offence aims to prevent the commercialisation of human reproduction.

    Good luck with that.

    All these pollies who think that making a law will make it so badly need to read Posner on ‘immoral markets’.

  7. Liam
    Posted January 25, 2011 at 12:28 pm | Permalink

    #5 desipsis I know that visitation rights under the Family Court or State Children’s Court can be to anybody significant in the child’s life, not just legally recognised parents. Grandparents, especially.

    Sometimes it’s takes something to happen before we can look and say: “there’s something not right about that”

    Yes, that’s true. The other difficult thing is that different societies come up with different responses: various of the United States see nothing wrong with commercial surrogacy arrangements or indeed with paying people for their blood plasma and organs. So you get to a point where people wind up arguing that Australian law should recognise a practice we see as unethical, as long as it happens somewhere outside Australia.

  8. Posted January 25, 2011 at 1:00 pm | Permalink

    Liam

    I can see your point on ART dealing with some of current possibilities, but…

    There is straight adoption of an existing child, and provision of both ovum and uterus, both of which need no more technology than a bed, and possibly a turkey baster. Supply of uterus only (putting it ugly, rental of a uterus, if not the body), provision of ova complete with genes without uterus, provision of enucleated ova (with or without uterus), and the possibility of two biological fathers and no genetic mother rely on technogy.

    Other plausible complications could include provision of only a single chromosome or chromosomal segment, replacing that of one parent carrying something nasty in a known locus, thus providing three nuclear genetic parents, potentially all male, fourth person providing a uterus only, and a fifth providing an enucleated egg (with mitochondia, themselves carrying genetic material with significant impact). That’s one individual getting genetic material directly from four people and gestational support from another, and subject to all the epigenetic risks from the technical procedures before implantation.

    Hell, it could be more complicated, each of the chromosomes derived from a different person…. pushing it up to nearly 50 direct parents, and at a mere 2% contribution each (or 98% lack of responsibility)… assigning rights and obligations is a nightmare.

    Knowing the difference between the routine cutting and splicing I did in the lab to E.coli in 1982, which is technically straightforward now, the picture I’ve sketched could easily be realized technically in my lifetime.

    The scientific community has been screaming for /decades/ for a permanent, if occasional, forum to work through the implications of things with legal academics, knowing that dumping them in the laps of politicians for post hoc laws will make a godawful hash of it all.

    A brave new world without brave new legal frameworks before an unscrupulous service provider rolls up sleeves… *shudder*.

  9. Liam
    Posted January 25, 2011 at 1:25 pm | Permalink

    SL, funny you should mention Posner. He’s argued specificially in favour of commercial surrogacy and even in favour of adoption markets (in Sex and Reason). Obviously, I don’t agree that either is desirable.

    There is straight adoption of an existing child, and provision of both ovum and uterus, both of which need no technology than a bed, and possibly a turkey baster

    Agreed, that “technology” has always existed and always will, but that’s adoption law, not surrogacy. The birth mother will remain on the child’s birth certificate, while surrogacy arrangements allow for surrogate parents to take her place.

    A brave new world without brave new legal frameworks before an unscrupulous service provider rolls up sleeves… *shudder*.

    The one that comes to mind immediately for me is the Chinese entrepreneur who makes the obvious link between high incarceration rates in mainland China, the one child policy, and the demand for overseas adoption, and realises that young female prisoners make for great potential participants in commercial surrogacy arrangements.

  10. Nick Ferrett
    Posted January 25, 2011 at 2:21 pm | Permalink

    One thing which bothers me about most discussions about unusual modes of reproduction is that it is always analysed in terms of the rights of people to have children rather than the consequences to the children in question. Talk of markets and economic exploitation of organs are emanations of that.

    Australian law surrounding custody of children is based on the imperative of the child’s best interests, but that interest is only ever analysed by reference to the claims of those seeking custody.

    Likewise, reproduction law, for all that it may require consideration of the interests of children to be created in the processes it regulates, only ever deals in the competing claims of those whom it regulates – the prospective parents and their assistants.

    Maybe we should be considering the possibility that assisting anyone and everyone to have children is not such a good idea.

    In this regard, I think that adoption is quite conceptually distinct from assisted reproduction. Adoption starts from the premise that there is a child who needs parents. Assisted reproduction starts from the premise that there are parents who want children.

    Also, LE, I don’t accept the argument that it is going to go on so we should bring it out in the open and regulate it. The same can be said of virtually anything that the law bans. I think we need to make a moral choice about whether or not we ban the conduct in question (which obviously has to include whether we are prepared to implement the kind of sanction likely to discourage most from breaching the proposed prohibition) rather than say that although we don’t like it we’d rather tell people how they should do it.

  11. kvd
    Posted January 25, 2011 at 3:12 pm | Permalink

    This discussion reminds me of something that I think Nick Ferrett quoted back in that “choice of sex” post a while back. I think he said “bad cases make bad laws”. Forgive if wrongly quoted or attributed.

    The point being, is this a discussion as to the law involved in what is essentially a commercial transaction – looking to the rights of the parties involved – and leaving the basic ethics, morality, philosophy, psychology involved to them as do such things; namely the people, as represented by their elected representatives?

    I’ve no doubt that there are presently thousands of successful surrogacy “transactions” – with genetic code being supplied hither and thither into the mix, as it were, and with all the future possibilities that Dave points out. We don’t hear of those because they are “successful” i.e. not needing court resolution.

    Or LE, are you inviting discussion of those other factors – most of which seem to me to be intensely personal, in some cases faith-based?

    Also, what court or division is Mr Justice Baker attached to? He seems to be taking into account a lot of factors “in his judgement” upon which he may at best be only qualified as a layman. I am not saying I disagree with his opinion; just wondering how he can be so convinced of his opinion.

  12. Posted January 25, 2011 at 3:18 pm | Permalink

    I just went and re-read the ‘adoption market’ section from Sex and Reason; hence my disappearance. I must admit part of me suspects Posner was trying a particular argument on for size (quite a lot of his book is like that, I think). I could be wrong on this, but the tone is very arch.

    He gets a kick out of demolishing people’s sacred cows, and he likes the Swedes, the Romans and the Japanese — they get his ‘societies that work’ tick — but in some ways that’s because their underlying social values were/are different from what he sees around him in the US. I was also struck by how things have changed since 1994 — Posner’s survey data for the US on approval of gay marriage is 70/30 against. If I read Andrew Norton’s postings on this topic right, those numbers have reversed since then.

  13. Posted January 25, 2011 at 7:01 pm | Permalink

    SL

    Posner’s survey data for the US on approval of gay marriage is 70/30 against. If I read Andrew Norton’s postings on this topic right, those numbers have reversed since then.

    Not quite. Gay marriage is still having trouble breaking the 50% barrier. But if you put it in terms of legal recognition of same-sex relationships, it is more like 60:40 support.

    It is in Australia where gay marriage has been surging to clear majority support.

    On the main topic, surrogacy makes my head hurt. I have no clear moral intuitions (meaning I have contradictory ones). My sympathy goes to folk who are forced to deal with it.

  14. ben
    Posted January 26, 2011 at 6:24 am | Permalink

    I think it might be best for surrogacy and organ donation contracts to be unenforceable. This would always give the ‘exploited’ party an out and the market should still be able to work around it satisfactorily with an escrow arrangement.

  15. Nick Ferrett
    Posted January 26, 2011 at 6:32 am | Permalink

    kvd, it wasn’t me who made that comment.

  16. kvd
    Posted January 26, 2011 at 9:26 am | Permalink

    Sorry Nick – I scored a golden double by misquoting the wrong person: it was Patrick who reminded me that “hard cases make bad law”.

  17. Posted January 26, 2011 at 4:24 pm | Permalink

    Don’t worry, kvd: if nothing else you’ve reminded everyone here of something important. Hard cases do make bad law; what LE has written about in the above post is a signal example.

  18. Mel
    Posted January 26, 2011 at 8:17 pm | Permalink

    I don’t have a problem with commercial surrogacy subject to regulation that protects all parties involved.

    The argument about the exploitation of vulnerable women strikes me as patronising.

  19. conrad
    Posted January 27, 2011 at 4:21 am | Permalink

    “there seems to be an exploitative aspect to such a relationship”

    Perhaps your job is too much fun, but I imagine it’s the degree of exploitation that is important, not whether it is or not.

  20. Liam
    Posted January 27, 2011 at 8:00 am | Permalink

    The topic was discussed on Radio National this morning.

  21. Posted March 22, 2012 at 8:43 pm | Permalink

    i bow my head 360 degrees to the law that state surrogacy is legal….I mean why do they have to make such law to make it illegal? Are they not happy that some people are helping couples who aren’t able to have babies? or helping them build FAMILY?

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