Here’s a fairly recent opinion from the UK involving surrogacy. If you’d rather not read the actual opinion, there’s a bit of press coverage, but I think the opinion itself is really worth a look. (To give credit where credit is due, I found this case via The Spin Doctor. I don’t entirely agree with the analysis of the case that’s posted there, but that’s a different matter.)
I sometimes think that surrogacy is the most controversial of the ART practices. It’s a topic that I’ve written about fairly frequently (you can find most of the posts under the tag “surrogacy“), sometimes at length. Perhaps because it is controversial, stark differences in practices permitted/available in different countries, which means every case must be considered carefully in its own context.
There are a couple of key points about surrogacy in the UK (which has actually been discussed here before.) As the opinion makes clear, in the UK, no money or other benefit may be paid to the surrogate. (Expenses reasonably incurred are permitted, and perhaps that’s a topic for another time.) Further, negotiating a surrogacy agreement on a commercial basis is criminal. There are agencies that facilitate introductions between potential surrogates and people who wish to use surrogates, but as I understand it, they cannot be for profit enterprises. Indeed, they are obliged to make sure that the transactions are not commercial.
This in itself is interesting. We tend to think in terms of commercial for-profit surrogacy agencies, which abound in the US (where permitted). I’m not sure there are not-for-profit surrogacy centers here. (If you want to see what a UK site looks like, here’s one.)
Crucially these UK centers provide advice and counselling. That’s crucial because, as I’ve noted in the past, careful counselling and relationship management seems to be the single most important determinant of successful surrogacy. (I define “successful surrogacy” as that which ends with everyone contented.)
There’s one other feature of UK law that must be noted at the outset: The woman who gives birth is the legal mother of the child. I don’ t think that is made clear in either the opinion (which assumes it as a given) or the press coverage.
Further, the woman who gives birth is the mother whether the woman is genetically related to the child or not. One thing that means is that the distinction between “traditional surrogacy” and “gestational surrogacy” is legally irrelevant in the UK. This, too, is something discussed previously here. Consistent with my general view that DNA is not the defining factor of parenthood, I’m inclined to agree with the uniform treatment accorded surrogates under UK law.
Now, back to the case in hand. I think the court’s opinion sets out the heart of the problem effectively just at the beginning of the opinion. Despite the regulation of surrogacy in the UK and the existence of those non-commercial surrogacy centers
the advent of the internet has facilitated the making of informal surrogacy arrangements between adults. In such cases, those entering the arrangement do not have the advantage of the advice, counselling and support that the established agencies provide.
On one level, that pretty much tells you all you need to know about this case. This is one of those informal surrogacy arrangements and anyone looking at it from the outside could probably see a dozen reasons it was likely to end badly. (The facts really are worth reading.)
Here’s one particular observation that seems to me important. This is a case that was going to end badly no matter what the law on legal parentage was. What I mean is that it wouldn’t fix the problems here (in my view) if the law recognized Mrs. W as a parent instead of the woman identified as “the mother” in the opinion. That’s because what makes this a bad case (in my view) is the dysfunctional relationship between the people involved and the degree to which the parties seemed not to fully understand the nature of the undertaking on which the embarked.
Thus one thing I take from the case is the importance of screening and counselling. One of the things that worries me about the globalization of surrogacy is the potential that this race to the bottom means less and less counselling/screening gets conducted. Additionally, the fixation on genetics leads people to conclude the problem with a case like this is that it is traditional and not gestational surrogacy. (I think that’s the implication of the post on Spin Doctor, which is why I think I might disagree with it.) I worry that this obscures what we really need to focus on.
I think I’ll stop here for today, but with this conclusion. In the end, I remain convinced that the relationship between a woman who is a surrogate and the individual or couple she works with is a complicated one. Irreconcilable conflict is problematic no matter who wins. The way forward must be to structure those relationships to maximize the likelihood we don’t end up there.