Surrogacy in the UK–The Strong Rights of the Surrogate Mother

Surrogacy is a topic that comes up here with some regularity.   It’s not hard to see why, as it poses some fairly obvious legal and moral challenges.   As I’ve noted before the UK has an interesting and unusual approach to surrogacy and this is the subject of a fine little essay I came across today.   The author is Natalie Gamble, a UK lawyer who is both knowledgable and experienced.

As Gamble notes, in the UK the woman who gives birth is always the legal mother of the child.   This means, as Gamble’s title notes, that the surrogate has an absolute right to change her mind.

Remarkably, this is true whether the surrogate is genetically related to the child or not.   In other words, there is one rule for all surrogacy, whether what is known as gestational or traditional.   Personally I’m inclined to think this aspect of the UK rule is a good thing–if we distinguish between a genetically related surrogate and a surrogate who is not genetically related then we affirm that genetic connection (or lack thereof) matters.   Consistent with my assertion that it ought not to be a critical factor, I wouldn’t draw this distinction.  (I’m well aware that many other people disagree, which of course follows logically from an assertion that genetic relationship is all-important.)

What struck me most in Gamble’s essay is the timing mandated in the UK.

 The intended parents may apply to the family court for a parental order within the six months after the birth, and the birth parents then give up their status. The birth parents must give full, free and unconditional consent, and this cannot be given before six weeks after the birth. The only limited exception is where the surrogate cannot be found or is incapable of giving consent.

[Emphasis mine.]

There are two important things here.  First, the surrogate (and her partner/spouse) cannot give up parental rights for the first six weeks of the child’s life.   I know I just basically repeated what’s in the text above, but I think it is that important to get this point.   Six weeks in this context is a very long time.

Second, the UK surrogate has a stronger set of rights than does a woman who just gives birth and is planning to give up her child for adoption.   (I’m not sure in what way stronger–but I understand this to be the assertion Gamble is making.)

Being unable to give up parental rights for six weeks is not necessarily a good thing for the surrogate.  The vast majority of the time, surrogacy works smoothly.  (This is especially true if there is good screening of the participants.) So in the vast majority of cases, the intended parents should be raising the child from birth.  I suppose they are free to do so–nothing mandates that the surrogate actually be the person caring for the child–but the law doesn’t recognize that.   Indeed, for that first six weeks, the law is at odds with reality.  Given that six weeks really is a long time, that seems like it is just asking for trouble.

Gamble explains the origin of these provisions:  They date from a time when surrogacy was new and viewed with a great deal of suspicion.  Perhaps, as she suggests, it is time to move beyond that stance, especially as people can easily evade UK law by going abroad.

The question for me, though, is what should replace the current scheme.   Broadly speaking, I see two possibilities.   First, you could alter the rule that the surrogate is the legal mother of the child.   This would be a dramatic change that would completely alter the calculus of surrogacy.   Second, and much less drastically, you could cut down the six week period during which the surrogate cannot consent to the assumption of rights by the intended parents.

I’m inclined towards the less dramatic solution.   For a variety of reasons I’ve discussed in the past, I favor assigning legal parentage to the surrogate.    But why would you set different rules for surrogacy and adoption (in terms of waiting periods, say) once you’ve decided that both are permissible?

I know that in some states (here in the US) the post-birth period during which a birth mother can change her mind is extremely short–and I don’t doubt that it can be too short, just as it can be too long.   It’s the Goldilocks problem I suppose–find the period of time that is not too long, not too short, but just right.    But if you find that period of time, wouldn’t it make sense to have it be the same for adoption and surrogacy, especially if you consider both the surrogate and the woman who gives birth in the adoption setting to be legal mothers?

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103 responses to “Surrogacy in the UK–The Strong Rights of the Surrogate Mother

  1. the law seems designed to discourage surrogacy. why not just forbid it?

    • Well, as you suggest, if you really want to discourage surrogacy, you forbid it. Plenty of places do that.

      I think its more accurate to say that the law is designed to allow surrogacy but also protect women who will be surrogates. It places more power in their hands. This will doubtless discourage some people from doing surrogacy in the UK, but by no means all. It’s probably the result of fearing exploitation of the surrogate more than any other bad outcome.

  2. sorry for going off topic again julie but once more I must object to any and all use to the phrase “traditional surrogate”. There is no basis in which this is a correct phrase to use. There are no medical factors that differentiate the “traditional surrogate” from any other pregnant woman. And from what I can understand there are no legal factors that differentiate between a “traditional surrogate” and any regular old pregnant woman. In colloquial usage more or less everyone assumes that when the word :”surrogate” is used; it refers to a woman implanted with someone else’s in-vitro conceived embryo. Only people with lots of experience with ART issues understand this phrase to mean what you mean it to.
    I therefore request that you stop using this completely innaccurate phrase coined by the ART industry with probable deceptive motives.

    • I do find it an unsatisfactory term (and I don’t think this is off-topic). At the same time, I need some term for a non-gestational surrogate. (Could that be it?) You are right that there are no medical factors that distinguish a non-gestational surrogate from any other pregnant woman, but there are nonetheless differences that might be important.

      A non-gestational surrogate is a woman who has intentionally become pregnant for the purpose of giving the resulting child to someone else. I think that distinguishes her from a woman who accidentally becomes pregnant and decides to carry the child to term but then give the baby up for adoption. These aren’t medical factors. It’s quite possible, however, that these differences result in different legal approaches or different moral judgments and so on.

      So I will seek to stop using “traditional surrogate” and will cast about for something better. I’m afraid “non-gestational” is also pretty obscure. Maybe “genetically related surrogate?” Any other suggestions?

      • It’s the word surrogate itself that is most problematic. The descriptive words don’t change much.
        The goal is to get the law to recognize it as something different than your avg run o the mill pregnant woman. using the word surrogate leads the powers that be in that direction, any way you describe it.

        • I therefore suggest the use of the term “pregnant woman” with the unusual circumstances of the pregnancy explained.

        • Note: we have no specific term to denote a woman who became pregnant via the egg donation procedure (although scientifically she and the gestational surrogate are in the same medical boat). this is because the law as already accepted egg donation as legal and treats the buyer as a regular run of the mill mother. So when we want to describe this pregnant woman we simply use the phrase “pregnant woman” and then explain the circumstances of the pregnancy.
          Such is the relationship between language and law. and advocacy.

          • An important observation. Pregnant is pregnant, is what you are thinking, right? You can see that from my point of view (genetics not being important) there’s no need to distinguish between the woman pregnant with someone else’s egg and a woman pregnant with her own.

            You could actually tell the difference between these two women based on medical/scientific evaluation. What you couldn’t tell is why they are doing what they are doing–which is what distinguishes a person pregnant for another from a person who just happens to be pregnant. I think there’s a post in here somewhere. I need to think a bit more–and that must wait till after the next class.

            • I’m thinking that “pregnant is pregnant” in the case of the egg donor because this is legally a settled issue; it has been settled in a matter that indeed does not differentiate between her and any other pregnant woman, and it serves no interest to any of the major players to use a specialized term. In fact a specialized term would contradict the legal status.
              This is NOT the case with the term “traditional surrogate.” there are almost no locales that will recognize this woman as anything other than a mother. Hence the term is out of synch with the reality. It is only in synch with the the ART advocates want the reality to be. Thus when use the term, we are biasing the discussion in the direction of the advocates.

              • I’m not sure it is fair to say that the egg donor case is legally settled. The woman who is pregnant may or may not be the legal mother of the resulting child. Indeed, as I think you point it, it is more settled in the case of the “traditional surrogate” where she will be the legal mother.

                Still I see what you are driving at. The language “traditional surrogate” creates (or attempts to create) a new subcategory of pregnant women who will not become parents upon the birth of the child. This, I think, is largely correct. I’m just not sure it is as true about the person pregnant with the donor egg. Couldn’t you say that there, too, the language of gestational surrogacy is used to distinguish a new subcategory of women who will not become legal parents? To distinguish between the “ordinary case” where the woman using the donor egg will become a legal mother and the case where the woman using the donor egg will not become a legal mother?

              • I had thought that it is pretty much recognized everywhere in the US that when a woman purchases a legally donated egg and has it implanted in herself, she is a legal mother.

        • I see your point and perhaps it suggests some broader new language is needed. Handmaid? (That’s taken from the Margaret Atwood novel, The Handmaid’s Tale, which in turn may have biblical origins, though I haven’t checked.) (This reminds me that there is nothing really new about surrogacy if you don’t go for the kind requiring IVF.)

          I do want some particular term because I think that at least for some purposes it matters whether you enter into the whole process of pregnancy for someone else.

      • I assumed the term “traditional surrogacy” existed because of the early days of ART where artificial insemination was available but IVF was not yet available? When IVF became available, the old way was called “traditional.”

        • “Traditional” simply means the long-established way of doing things.

          The term “Traditional Surrogacy” means this is how it has historically been done and goes back to the Bible. There is nothing “new” about it and it’s being happening for thousands of years before the ART industry ever existed.

          • It most certainly does not go back to the Bible. The Biblical story is about a woman (Sarah) who intends to raise a subservient woman’s (Hagar’s) child as her own but who ultimately fails, as Hagar runs away and receives a divine promise from an angel that HER son will prosper. The Bibliical narrator never once attributes Hagar’s son to Sarah. When Sarah has her own biological child (Isaac), she rejects both Hagar and Hagar’s son.

            You may be referring to the code of Hammurabi which talks about an infertile woman being able to discharge her obligation to reproduce her husband’s seed, via another woman- a concubine, which is something between a cross between a slavewoman and a wife. Note that the practice depends on the enslavement of the woman. Note the husband always maintains a relation with this woman.

            144. If a man take a wife and this woman give her husband a maid-servant, and she bear him children, but this man wishes to take another wife, this shall not be permitted to him; he shall not take a second wife.

            146. If a man take a wife and she give this man a maid-servant as wife and she bear him children, and then this maid assume equality with the wife: because she has borne him children her master shall not sell her for money, but he may keep her as a slave, reckoning her among the maid-servants.

            147. If she have not borne him children, then her mistress may sell her for money.

            This is very far from any sort of practice that is carried on today.

            But even if it was, the fact of something being practiced in ancient Mesopotamia does not make it “traditional.” and “always done.” There are a whole lot of things that were practiced in ancient societies.

            • There is one way, that if we are honest, we would admit that surrogacy+egg donation has in common with Hammurabi’s law- the fact that many of these “intended mothers” are doing this because somewhere deep down they are under obligation to reproduce their husbands seed.
              Ditto regarding husbands (if I may call them “Intended Father’s”) in the case of sperm donation.
              For many people, enabling your partner to reproduce biologically, is an obligation of marriage, not always stated explicitly, and requirement in order that the marriage continue.

            • It looks to me like you know a good deal more of the history than I do. But it seems to me that one important distinction aspect of “traditional surrogacy” is that it is low-tech. Nothing fancy (like IVF) is needed and thus it has always been possible. This being the case, I would bet that it has existed in the past, whether as a formalized practice or not. (I’m thinking about women who have had children for sisters who were otherwise barren, say.) And I think I’ve read about it in other cultures (in imperial China I believe a child the emperor’s concubine gave birth to was considered to be the child of the emperor’s wife.)

              But while all this is quite interesting to me, it doesn’t negate your point about the term “traditional surrogacy.” Rebecca may be right about the origin of its usage above. I’m not sure it was called “traditional surrogacy” before then. But maybe the question to ask is when people started to use the term “surrogacy” at all–if that predates ART? And I do not know the answer to that.

              I do think some word to describe the role of the pregnant woman in the situation where she agrees to be pregnant for another is useful. This, it seems to me, is what “surrogate” does.

              • A surrogate literally means a stand in for someone else.
                A surrogate pregnant with her own embryo is standing in for no one. She is just continuing the natural procedure which she herself began inside her body. I would more likely call the commissioner a surrogate parent, if they indeed take custody of the child.
                If she was implanted with someone else’s embryo well then she is a surrogate pregnancy, doing what someone else would have normally done, completing someone else’s thing. Totally different in my opinion.

            • Like the Biblical story, I don’t see any evidence that Hammurabi code attributes one woman’s birth child to another woman. Perhaps there is another source that I am unaware of? Otherwise, this is but an example of projecting our own norms on a separate, ancient practice.
              The Hammurabi code has a separate section on adoption.

            • And this is why nobody wins the debate but Ki when it involves deep ancient history.

              • bible at least. I don’t know much about the ancient histories of other parts of the world. I suppose that should be my next project.

            • This just shows that we have an ever changing format of what a family will be and look like throughout history. Surrogacy isn’t prevalent in countries that allow for polygamy.

              In countries that allow men to have multiple wives if one wife is infertile than the man will just marry an additional wife.

              That is why Surrogacy in it’s current format is a recent change in family formation and a Western world family design.

  3. The ART industry would like you and I to believe that the existence of an agreement to surrendur a child after birth; is what defines a “surrogate”. They have an invented this phrase, which pre-supposes their desired conclusion. When we fall for this trick and use this phrase we implicitly accept their preference and thus are arguments against this conclusion become muddled.

    • I think the more important difference might be that an agreement is made before there is any pregnancy. Thus, the pregnancy only comes into being because of the agreement. And yes, it does come into being with the shared understanding that it is for someone else. This leads to the expectation (enforceable or not) that the child will be surrendered–though I’m not sure that’s the term I would pick.

      I don’t see it as a trick. I think someone could agree to do this for another person. What the legal effect of it should be is a different matter.

      • It enslaves the child Julie. The child is made to serve as the child of another person rather than simply being able to exist as themselves the child of the individuals who they originated from.

        Ki will not like this but I’m going to bring up the slave thing again. Why do you think so many black American’s are named Washington? Their ancestors were born in captivity and assigned the surname of the person that held title to them rather than simply being identified as the child of the man and woman they originated from. They were serving the man that owned them. When they were sold they were given a new identity a new surname to reflect that of their new owner

        The donor or surrogate sells their freedom, gives it up willingly and then the intended parent owns their body their freedom of reproductive choice. The donor can no longer protest and say they do not wish for the frozen embryos to be gestated, they changed their mind and want out they sold their freedom of choice and now when their offspring are born they too will be controlled by their parent’s master and they will be named not for their parent but for the master who holds title to them.

        It does not matter what the master intends the servant to serve as – whether its to serve as a scullery maid or to serve them as if they were their own child they they own the donor’s freedom and the freedom of the donor’s child.

        • I think your choice of language and imagery is really problematic. Suppose a male/female couple engage in sex and she gets pregnant and gives birth. You wouldn’t describe that child as enslaved, right? That’s not because you know anything about the conditions under which the child would be living–whether the child would be well-cared for or forced to do menial labor. It’s because you would say the child is being raised by it’s proper parents–by which you mean the genetic parents.

          In contrast, if a couple have a child (whether the woman in the couple gives birth to the child or not) using someone else’s gametes, you’d say that child is enslaved. Again, this has nothing to do with the actual conditions of the child’s life–the people raising the child could be terrific parents, they could be generous and kind and the child could even be in close touch with the gamete providers. You’d say the child is enslaved simply because it is not being raised by its genetic parents.

          This just isn’t the way I think about slavery and what it means. Legal parents, no matter how they attain their legal status, do not own their children. Slaves were considered to be property.

          I think I know where we part company. I think you’d assert that but for the sale of the gamete, the gamete provider would be a legal parent, so the gamete provider has sold his/her right to legal parentage. I do not think that selling a gamete is the same as selling a child because I don’t think the gamete provider has any necessary right to be the legal parent of the resulting child.

          In terms of how the law actually does work (and how it has worked in the past) I think I can say I’m right. People who are genetically connected to children are not always legal parents and this isn’t only about ART. But this isn’t only about how the law really does work, it is also about how the law could be made to work. There is no doubt that the law could be as you wish it to be–that a gamete provider is always recognized as a legal parent. And if that were the law then I think it would follow that selling gametes would be very problematic. (I’m still not convinced slavery is the right analogy.)

          It seems to me that what you are doing is using rather inflammatory language (the language of slavery) to make your point that children ought to be raised by the people whose gametes are used to create them. This doesn’t (to my mind) enhance reasoned discussion.

          • Does a sperm or egg donor have the right to change their mind 6 months down the road and say hey I want my gametes and any embryos conceived back because I changed my mind I don’t want any offspring in the world that I am not raising? Cause if you promise to reproduce with someone today you can change your mind tomorrow no court will force you to make babies for anyone else under contract. That is freedom of choice reproductive rights correct? Remember I am not talking about changing your mind after your child is adopted but rather the choice not to conceive one in the first place or rather the choice not to have a woman impregnated with the their frozen embryo.

            Can the child live as themselves the offspring of their genetic parents the way other people can or must they be doomed to play the roll of the the child of the people who bought that roll that title from their parents/?

            • Why should a Surrogate or an Egg Donor be allowed to change their mind? Why do you advocate for woman to be given different standards than men?

              Why don’t Men get the same equal rights to change their mind?

              Once a man gets a woman pregnant he is not allowed to change his mind and not support the baby. It doesn’t matter if he wants the child or not. If he wants an abortion or not. If he wanted to become a parent or not.

              Intention doesn’t matter. She’s pregnant and the man is now responsible for the woman decisions.

              Once he gets a woman pregnant he is that woman’s and babies slave for 18 years rather he wants it or not. They are guaranteed a percentage of his income. He is forced to work for them. If they don’t get their money on time he will go to jail. He will lose the right to leave the country if they are not paid on time.

              I think that Men should have the right to choose not to support the baby for 6 months after birth. That seems fair to me.

              If woman are allowed the right to choose to NOT financially support their baby by giving it away through adoption – why shouldn’t men have this same right?

              If the woman is allowed the right to abort the baby for any reason, why doesn’t the man get equal consideration? It is 50% his baby. Why doesn’t he get at least 50% of the choice?

              Everyone agrees that a woman can be in a bad position in life where it would be best for the baby for her to give away her legal rights and financial responsibilities to the baby through adoption. Why shouldn’t men be judged by the same standard?

              Really now, Who is the slave?

              • we’ve addressed this a number of times. you simply can not compare men and women when it comes to abortion. Reason is simple- it’s part of her body, not his. No one has a right to violate anyone else’s body, which is what forcing an abortion would be.
                Once the baby is born, and is thus a person unto itself, by all means, I support men and women should have equal rights and responsibilities.

                • also, calling a man a slave for being required to support his offspring is a bit overdoing it. As long as we are trying to read slave analogies into every little thing, every parent could be considered a “slave” to their offspring- we are often called upon making decisions that we’d rather not for ourselves, but me must do it for the wellbeing of our children. Can we get over this and call it what it is, not slavery, but life.

        • Come on Marilyn, you can’t really think it doesn’t matter how the kid is actually treated? You can make a much better argument than this non-analogy. Ah well, you predicted that I would disagree.

          • although people who try to support surrogacy by pointing to ancient systems of people as property- don’t do their cause much good either.

            • A person reared by the parents who reproduced to create them is not owned by those parents. Their parents did not obtain their position as parents by virtue of a trade agreement with anyone else. The child is identified as being their child because they are the child’s source not their purchaser not their commissioner

            • OK Ki. Is it OK to purchase a human being out of their bio family if your going to be really nice?

          • Yes but regardless of how the child is treated are they owned by the person that bought the rights to their parents reproductive freedom? Are they assigned the name of the parent that made them or the person that bought them Ki

            • no more and no less than all children are owned

              • The logic is black and white – if you cause something with your own actions like making a mess or reproducing then its your responsibility to deal with the consequences – that does not make you a slave to your to the people whose home you made a mess in, it means you are responsible for the outcome of your actions. It does not make you a slave to your child either; raising your offspring is part of being responsible for creating a life. You are responsible for your child’s life to the same extent that your responsible for your own life until they are able to fend for themselves and then they will do the same for their children. You make sure you eat and therefore, you make sure they eat, you make sure you have clothes you make sure they have clothes and also you teach them what you know so they can learn to survive on their own like you have. The child is not a slave the child is a person with a right to rely upon the person who created them for support and care while they are minors. The child’s identity is tied to whom they originated from for it identifies them in relationship to everyone who has ever been or will be born. If you record a person’s identity incorrectly and attribute their existence to people whose bodies they did not originate from then they will be living under an assigned identity that is fake for they are not related to the people posing as their relatives they are related to people whose identities are concealed and that is a health concern to all their relatives as well as them.

                I give women the same rights as men with regard to whether or not to become parents before someone is pregnant and after. If you have born offspring then your responsible for them. If someone is pregnant with a child that will some day possibly be your offspring its kind of a wait and see deal. If nobody is pregnant with your some day possibly offspring then you should be able to to continue to have nobody be pregnant with your someday offspring if you don’t want them to be. Many divorcing men have won the right not to have their ex wives use their frozen embryos. Even if they are married they can’t just go implant one with out his consent.

                • I do not view it as you being responsible for what you caused. That skates too close to the “intent” paradigm favored by ART. It doesn’t matter whether you caused it or not. You may have taken every precuation not to reproduce but failed- that makes no difference to me.
                  In my view, kinship is not a matter of choice. I did not choose my mother. I did not choose my father. I did not choose my siblings. And while we have some measure of control over reproducing our own offspring, ultimately I do not choose my children. The only relationship that we choose is our spouse and that is a relationship we are also free to opt out of via divorce.

                  • I think that Marilynn wanting consent from the husband to use his embryos sounds a lot like intent is a very important requirement for reproduction.

                  • Certainly no one should be able to force someone to reproduce against their will. I’m with Marilyn on that. But, once it has already been done, it matters not a whit to the question of kinship.
                    There are many many women worldwide who do not have access to abortion and birth control. They are still mothers to their children.

                  • oh but it was for their time, not their cells or their embryo or their baby.

                  • Woah so what if someone took precautions – if they reproduced they caused someone else to exist. Intentions are irrelevant. I agree it is not a matter of choice at all. If you reproduced u caused someone else to exist. Even if someone forces you against your will, its still you that does the thing, you were the one forced. You can’t extract yourself from the sceen of an accident and tell the guy who hit you and the guy you hit to work it out. You hit the car in front of you even though the car behind you pushed your car forward. Of course you need to be responsible for what you cause. Other’s influence our behavior.- that is all that those arrangers and coordinators are doing influencing the people who reproduce and conceive

        • Marilynn you do understand that in Litowitz v. Litowitz the Judge ruled that once the Egg and Sperm are turned into an Embryo the sperm and egg no longer exist.

          After fertilization; instead the eggs were transformed by fertilization into embryos, a different type of biological tissue.

          And Davis v. Davis indicated that embryos are distinguishable from other types of bodily “tissue,” such as sperm.

          And in Magdalin v. Commissioner stated following implantation, the embryos cannot be considered to be part of Dr. Magdalin’s “body.”

          If an embryo or fetus is part “of” the “body” of the biological father, sperm donor, or egg donor the constitutional right to be free from bodily intrusion would give the all of them, the right to prevent an abortion, or have an abortion, which would squarely conflict with a woman’s right to be or not to be a gestational parent.

          In this regard, the Egg Donor and the Surrogate have the same rights (or lack of rights) as a man in that once the reproduction possibility starts (through sex or art) they don’t have the ability to back out.

          Welcome to equal rights.

          • Equal rights- agree. I believe that both an egg donor and a sperm donor should most definitely be able to withdraw their consent prior to a pregnancy occuring.

            • although i would require them to return the money they received.

              • I am doing IVF with my eggs and donor sperm. Should I be out the $20k (for the IVF, not the sperm) if the sperm donor changes his mind before an embryo transfer works? I certainly don’t think so…. once fertilization happened that should be that in my opinion.

                • are you sure you need IVF? talk to your doctor. If you do not have fertility problems you do not need IVF. sorry for interfering in your private medical issues.

                  • Do you really think she is spending $20,000 for no reason? A lot of thought goes into this process.

                    That comment reminds me of my sister who after hearing we were doing Surrogacy because we didn’t have a uterus, begged us to just try to do it the natural way a little longer.

                  • Rebecca previously indicated on this forum that she was interested in sperm donation due to lack of a male partner. She did not mention any medical issues. Of course she does not have to. Just saying so because a lot of people confuse the medical processes of intrauterine insemination and IVF. Of course Rebecca does not have to tell us. Consider it a public service announcement.

                  • I am doing IVF because after going over options with a RE, unmedicated IUI has a very low success rate each cycle for a young fertile woman. IVF with a single embryo transfer of tested healthy embryo will give me over 50% chance of success per cycle. So I want to do everything I can to increase pregnancy chance without higher chance of embryos. I also may
                    want a second child but not for many years and

                  • Stupid phone that should be without higher chance of multiple pregnancy and also because I don’t want kids close in age if I want a second baby in my mid30s I can use leftover embryos made from my much younger eggs. So this is why I am doing IVF and testing the embryos. To me that is worth 20k

                  • Sorry for bugging you on this Rebecca but you may wish for a second opinion. Your RE may want your money. I know of women who conceived with only one try with no medications at all, not even the HCG injection to best time the insemination with the ovulation. and the chances increase with medications. And needless to say, for IVF you will be pumping yourself with far more medications plus undergoing a surgical procedure. .
                    The statistics you refer to may be compiled from women of all different ages and all different medical conditions.
                    Obviously if you do go through multiple attempts the costs will eventually run you up as far as IVF, true.

                  • also the cost of embryo storage for 5 years or so could be steep.

                  • Well my OBGYN agreed as well and she does not do any fertility procedures. herself. She recommended IUI with medication or IVF, and obviously IVF if I didn’t want multiples, unless I didn’t care if it would take a long time. I really want to avoid a birth close to the school cutoff so IVF makes more sense to me, since there’s a few months out of the year I can’t try.

                  • And yes to me getting pregnant more quickly and being able to take the extra step to know the embryo has normal chromosomes is more important to me than taking a chance with the unmedicated IUI – especially since there’s a few months out of the year I can’t even cycle due to the school/childcare issue. I would never consider medicated IUI. I am unwilling to take any increased chance of multiples at all.

                  • wild. modern life. hope your kid never gets sick unexpectedly. (btw you know your chances decrease per cycle if you only implant one embryo, right?)

                  • Where I live it is very, very expensive to pay for a full year of daycare/all day preschool for a 5 to almost 6 year old child who barely missed the school cutoff. Actually a full IVF cycle is probably much cheaper. The reason I have an over 50% chance per cycle is because I will be putting back an embryo that had all 24 chromosomes checked to see if they are normal; genetically normaly embryos have a higher implantation rate.

                    In any case it’s my money and my medical decision. If I want to pay more money to implant an embryo I know is healthy than that should be my choice.

                • i suppose this should be decided according to routine contract law; similar to purchasing a house or whatever… if one person bails out of the deal are they responsible for all the other’s expenses?

                  • It depends on how the contract written. For example, when you get a free cell phone if you don’t keep the services with that phone company for two years you agree to pay a fee to get out of the contract.

                    There are many contracts that have a penalty you are required to pay when you don’t perform as agreed.

                    Another example, If you rent or lease an apartment for one year and then want to move after 30 days you will also pay a penalty to get out of the contract.

                    It is a really common part of contracts.

                • If he were married to you or dating you and had a change of heart said he just did not want to have offspring in the world. Would you force him and use the embryos anyway or do you think he should have the right to withdraw consent to reproduce up until your actually pregnant? If you protested he could take you to court and stop you he does have the right to say he does not want you to use them. Do you think reproductive freedom is something that a person can sell to another person.

                  • The difference in that case would be that the procedure would initially have been undertaken jointly and thus it would be known the embryos belonged to both the man and the woman. The law and the consent paperwork are different based on whether a single person or a couple are having the procedure and make it clear who the embryos legally belong to.

                • there is so much control in the ART world. not that there is anything ethically wrong with this; but i find it a little disconcerting.

            • Using your line to withdraw consent at pregnancy for changing your mind for the Egg Donor and Sperm Donor, as well as the Man that has sex with a woman, wouldn’t it follow that a Surrogate should only be able to withdraw her consent prior to pregnancy?

              Why should the Surrogate get six weeks after birth and have different rights than everyone else?

              • the question falls on whether you view pregnancy as irreversibly tied to motherhood or not.

              • Once she is pregnant she is pregnant. I believe that if the baby is not her offspring she should have no right to be named on the birth record, the mother who reproduced should be put on the certificate and if that is an anonymous woman then the word pending should be written on that line for mother until they requisition the records from the doctor test her against the kid then her name should be typed in. While pregnant before the pregnancy is viable it is and should be legal for her to stop the pregnancy from developing into a fetus. Even if she is not the one whose cells split because its her body and she can opt out of developing a pregnancy if she wants. Normally a man would have no say so over the disposition of an embryo because its inside the expectant mother’s body. where she can stop it from developing when the embryo is frozen and in nobody’s body they are in an equal place and either one of them should have the authority to put a halt. My opinion was different previously I’ve just recently thought this through enough to change my mind.

              • replying to the above where you say based on my line of thinking about the male being able to withdraw consent being an important element of reproducing – Your so totally missing the point. Intent is not germane to reproduction at all but it is germane to being a free person able to exercise one’s own reproductive freedom of choice to or not to conceive a child to be able to control our own reproductive behavior and to have to take responsibility for our actions when things don’t go as planned.

              • regarding the surrogate having the right to go back on the agreement, seems that in the UK (as well as some locales in the US) the law does not recognize the agreement. So if the surrogate changes her mind she isn’t going back on any agreement.
                Whereas in nearly all locales egg donor and sperm donor agreements are acknowledged by the law.

                • And that is what is so sick about it. Why shouldn’t they still be able to change their mind if they decide they don’t want to reproduce and nobody is pregnant yet? If you promise to reproduce with a guy today and find out he is a lousy cheat tomorrow and don’t want to reproduce with him anymore, even if you signed a contract you should be able to change your mind. What if you were doing IVF with him and your eggs were in the dish could you not say stop! What happens when these cells are purchased is the reproductive freedom is sold too

                • Is that not the sickest thing? Contracts where people are paid in advance for services to be performed later if and when something occurs (like if the washer breaks they will fix it) are common in the world of contract law. No you have not fixed a washer when you signed the contract but if and when it breaks you will. No you have not abandoned your child but if and when one is born you will. Its horrible these contracts are enforceable.

                  And in terms of these people taking credit for creating a child when they merely influenced others to create and abandon one. Hiring someone to make a life should be treated the same as hiring someone to take a life: You can be arrested for conspiracy to commit a murder even if one is not committed. If one is committed then the person who did the hiring is guilty of their roll in the crime but ultimately the person who took the action and killed the person is guilty of taking their life. Both people are guilty but only one of them is actually responsible for someone being dead. Well the person who reproduces is the one who is responsible for creating the life and the person that paid them to do it is guilty of having influenced them,, that is all. If you treat it as pure commodification like hiring someone to make you a dress and when done the dress is yours – that’s pretty terrible. It does not mean you made the dress though, but it would make it your property because you bought it.

              • No! Everyone talks about the fact that they are only donating a cell…well then there should be nothing in their agreements about donating the resulting child huh? It should just be a crap shoot a gamble as to whether or not she’ll feel like giving up her offspring and there should be detailed investigations to prove she was in no way compensated or reimbursed for being or becoming pregnant or for agreeing to treat her offspring as someone else’s child. Up to and including having to turn over bank records. Of both her and the people taking the baby

                • I’d like to see all donors and surrogates audited by the IRS. The doctors should have to turn over their records of donor names to the IRS along with the amount of money they paid them and the amount of money they received for the eggs from whoever paid. The IRS publishes the names of people under investigation for tax evasion and I highly doubt most of them file taxes on it. I wonder if the doctors paying call the money they spend a charitable donation.

                  Anyway that would be one legal way to get all the names of every egg and sperm donor…to check them for tax evasion and that would really super help all the donor offspring out in figuring out who their parents are. That is if they could then match them up to the buyers.

                  • There are rulings from the IRS that Egg Donors don’t have to pay any taxes on their compensation.

                    Also, in Sedgwick v. commissioner the IRS audited a couple that deducted all of their Surrogacy expenses and the IRS ended up settling with them in their favor.

                  • Can you prove that they don’t have to pay taxes because last I checked there is a special page on the IRS website devoted to exactly that. Let me go check.

                  • I just checked and every single website for egg and sperm donation says that the dr or cryo bank does a 1099 independent contractor filing with the IRS and that the donor must report the money received as income. The IRS website has a section for where donors can claim their expenses for tissue donation as tax deductible but it seems odd to do both or maybe you could since it is not actually reimbursement for their expenses. In any event income is income and they make enough money at it that auditing them might make it possible for us to pay back some of our national debt.

          • There’s nothing legally preventing a surrogate from aborting, though, if she changed her mind about being pregnant. The most she could have to do is return all the money, yes?

            • If the Surrogate changes her mind before implantation there is no penalty. If she has an abortion later without the Intended Parents approval during the pregnancy she agrees to be financially responsible for all of the Intended Parents expenses. This includes her compensation, travel, and IVF expenses.

            • Why would she have to return the money? Its a gift. They were not paying her for a baby. They were not paying her to be pregnant for them. She was donating the pregnancy and she changed her mind she owes them nothing. That should be the risk they take.

  4. are the adoption procedures and the surrogacy-surrendur procedures different in the UK or are they the exact same thing? (except for the 6 weeks)

  5. The situation is even worse than you fear, Julie. Although consent cannot be given in UK parental order applications until at least six weeks after the birth, the court process typically takes 6-9 months to be concluded (mainly because it involves a welfare assessment and several court hearings). Although the intended parents are caring for the child in practice (and, weirdly, the law requires this as a pre-requisite to an application) everyone is in limbo for the whole of this time, and the surrogate remains the legal mother.

    The reason I say that the rights of a surrogate exceed those of a birth mother giving a child up for adoption is that, under UK adoption law, the court has an exceptional power to waive the requirement for the birth mother’s consent if the child’s welfare demands it – there is no such power in relation to parental order applications.

    As to what would work better, I think everyone involved in a surrogacy should (after appropriate support/screening) enter into some kind of memorandum of wishes (calling it a binding surrogacy agreement would be a big leap here in the UK). That could be used as a mechanism to register the intended parents on the birth certificate (perhaps with a ratifying court process during the pregnancy if necessary for policy reasons). The surrogate mother (?and her partner) could then be given a six month window of opportunity during which to challenge the position, and if she did the family court would have to make a decision on parentage based on the particular facts. We would need to think through carefully the guidance the court would be given in how to reach a decision, but it should in some way balance the interests of all involved – the child, the intended parents and the surrogate (?and her partner).

    At least then we would be providing better for the vast majority of cases which go smoothly; and giving the court more flexibility to deal with problems when they do arise.

    • It seems to me we all ought to agree that an extended period where the child is in legal (but not social) limbo is a fairly bad idea and I gather from what you’ve said that is what the law in the UK sets up.

      I also think your last point is terribly important. If you do proper screening and counselling, then it seems clear that the vast majority of surrogacy cases work out smoothly. What you need, then, is a legal structure that allows those to reach the agreed upon resolution fairly promptly while at the same time giving the court the authority it needs to address the small number of cases that WON’t work out smoothly. And I would think it would give some comfort to people that the court’s resolution of those cases would be directed towards serving the best interests of the specific child involved.

    • The process seems so backward to me. The woman who gives birth is now not always related to the child she delivers. She is pregnant, hopefully with the express permission of the female and male who reproduced to create the embryo in question. A woman who is carrying a pregnancy for money, no doubt has the permission of the people paying her, but are they both the people who reproduced to create the embryo? The problem with carrying an embryo your not related to is that it’s quite possible in anonymous donation situations that there is no actual consent given by the individuals who reproduced. There are plenty of fertility clinic scandals where eggs, sperm and embryos are misappropriated for sale to other patients, pawned off as being from consenting donors. There are plenty of clinic mix ups as well. The individuals who reproduced are not protected by this method you describe where a woman could be gestating an embryo that was not implanted with the consent of the people who reproduced. Then when the child is born the woman who gave birth is named mother and the people whose child it is are never notified of the error or if they are they have no recourse to be named parents of their own child. Surrogates should not be named mother unless they are the genetic mother. Intended parents should always have to adopt. Adoptions however should not be allowed if they are planned ahead of time for money like that.

      • It looks like you just got your wish in New Jersey.

        The Supreme Court ruled that the Egg Donor is the Genetic Mother. The Surrogate is the Biological Mother. The Intended Mother will be the Adoptive Mother. And on the Birth Certificate the Child will have NO Mother.

        However, the Intended Father is listed on the Birth Certificate as the Father since he provided the Sperm.

        I suppose this would mean if the Intended Parents used Donor Sperm and Donor Eggs New Jersey would issue a birth certificate with NO named parents.

        Who needs parents?

        • I know! I practically peed the floor.

        • You sir are not replaceable and neither is their mother whether she plans to raise them or not. Your kid has their mother other kids whose mom’s were egg donors are not so lucky. If she donated an egg she donated an egg, not the whole damn baby. If she wants to give up the baby also she should put her name on the birth record and go to court for the dignity and protection of her offspring so they are not marshaled off into some other people’s family loosing recognition in their own genetic families.

        • Terrible ruling. I’m glad they got it right regarding the father, but there is no such thing as a child without a mother. a new form of immaculate conception!

          • if the genetic mother was anonymous they should have chosen what they called “the biological mother” the gestational carrier. the idea that a child can be born without any mother at all is a very dangerous precedent. In this case there was a genetic father- but it other cases that could mean a child could be decided to have absolutely no kin whatsoever.

            • From what I understand of NJ law, the gestational carrier was at one point the legal mother but she signed a valid TPR after birth so is no longer a legal parent I remember when this case was in a lower court. Not sure if that part was overturned will have to read the NJ supreme court ruling.

          • Well the woman is not her mother that line should be left blank and if she wishes to have a legal status other than step mother she can adopt. I think they should have to get the consent of the actual mother for that by requisitioning records with the egg donors name to 1. Prove that the child is the child of the specific donor they are being told the egg came from and 2. She should be forced to acknowledge the existence of each of her children and be forced to go through the adoption process to vet any possible payment for her child. If all she donated was an egg then she should have to do everything else the normal way when it comes to giving up her offspring.

  6. In the UK consent from the mother who voluntarily chooses adoption (fairly rare there) cannot be taken until the baby is 6 weeks old.

    Page 10 of http://www.cafcass.gov.uk/media/6345/ADCS%20Adoption%20Protocol%20FPR_Update%200411.pdf

    And you know it took me a good six weeks to fully recover from child birth so perhaps that is the basis. Like you say the US some very short periods. I think they are insane – 24 hour non-revocable consent – no distinction if v birth or c birth. Insane.

    Is 6 weeks too long – perhaps – but I would also suggest that the UK probably also has cradle care or temporary guardianship orders just like the US does.

    • TAO If that is the case then it seems that the UK law actually does not recognize surrogacy as different from adoption

  7. Natalie said: “The reason I say that the rights of a surrogate exceed those of a birth mother giving a child up for adoption is that, under UK adoption law, the court has an exceptional power to waive the requirement for the birth mother’s consent if the child’s welfare demands it – there is no such power in relation to parental order applications.”

    Yet that would be a child who was taken by the local authorities/child welfare which is completely different than a voluntary domestic adoption “birth” parent situation – which is what would be of similar circumstances to a surrogacy – you have to compare those timelines.

    Trying to compare surrogacy and child welfare taking a child into care case and saying the court can make exceptions and wave consent and reduce the timelines in the best interests of the child just does not work.

  8. The adoption and surrogacy processes in the UK are different. Parental orders were specifically designed for surrogacy cases as an alternative to adoption and in theory offer a more streamlined process. The welfare vetting is certainly much lighter touch, and is done retrospectively rather than to approve prospective parents in advance. Parental orders are also different from adoption in various other ways – they result in the reissue of the child’s birth certificate (adoption gives an adoption certificate); they can only be applied for within six months of the birth (with adoption, there are minimum ‘living with the child’ requirements and no maximum time limit other than the child’s 18th birthday), one of the applicants has to be biologically connected with the child (there is obviously no such requirement with adoption), only couples can apply (with adoption, singles are also eligible).

    The only significant overlap is the 6 week consent rule, which I am sure was drawn from adoption law when parental orders were created.

    • Thanks so much for posting this info. Among other things, this is the first reference I’ve seen to an adoption certificate. In the US it’s routine to get a new birth certificate upon adoption and this practice makes some of the regular readers here very unhappy.

    • Natalie, how does the UK law define a surrogate?

      • never mind; i got the info off natalies website. I am a put off by the fact that the UK places a woman pregnant with her own genetic child into the surrogate categoy, but the impact of this is pretty much neutralized by defining all “surrogates” as mothers.

  9. Not necessarily TAO. The UK courts can waive parental consent in adoption proceedings which are private applications (e.g. step parent applications where the child has been living with the step parent for at least six months) and not necessarily involving children in care.

    • Natalie – that again is different than having a surrogate carry a child for assuming two parent home. First off – it is long past the six weeks post birth – the second is that they would be looking at distinct reasons why consent can be waived, i.e. abandonment, lack of support, previous issues parenting, moved out of country, cannot be found, etc..

      The only one you can compare how “birth parents rights” are less than the “surrogate rights” – would be a direct comparison of the closest match in an adoption scenario – which would be voluntary surrender for adoption of the baby without any child welfare concerns.

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