Comprehensive and detailed medical law notes that I used to prepare for my Medical Law exam, achieving 2.1 in Medical Law and a first class honours overall.
This document sets out the key principles and cases, core and further reading material notes, notes on class discussions and points of eva...
What is surrogacy?
Relatives/ friends v Strangers
Altruistic v Commercial
o Partially commercial: expenses paid to the surrogate
Full v Partial
o Partial: Commissioning father provides sperm, surrogate provides egg. Surrogate
can just inseminate herself so hard for law to regulate this.
o Full: Commissioning parents provide both gametes (surrogate is not genetically
related to the embryo, hasto happen with IVF so regulated under IVF provisions)
Conflicting interests: surrogate mother, commissioning parents and interests of child.
Is Surrogacy common?
Increasing numbers of UK couples are entering into surrogacy arrangements overseas
Increasing use of surrogacy by male same sex couples.
In 2007-2008 → 56 applications for parental orders.
In 2017 → 332 applications.
o Not all surrogacy arrangements apply for parental orders (formalising legal
relationship with child)
International surrogacy
Higher income country parents increasingly using surrogates from lower income
countries. Banned in 2016. India was a popular destination for this prior to the ban.
Cost of surrogacy is cheaper in lower income countries than say somewhere like US.
Surrogacy in India
o If surrogacy relationship breaks down then no payment needs to be made as it is
done in the end.
o Certainty as the women can sign away rights in advance. Surrogate would sign
over all rights to the baby before surrogacy process begins. (One of the issues
was women not wanting to give away baby after)
AB V CT [2015] EWFC 12,
Same sex couple having twins via surrogate in India. Judge expressed concern about
stringent contractual provisions and the only thing to show surrogate consented was her
thumbprint.
‘The surrogacy agreement was ‘signed’ by CT by way of a thumb print. It is 29 pages long
and contains numerous clauses, including some which limit CT’s ability to manage her
health during the pregnancy and make decisions about the delivery of the babies.
THEIS J: I agree with the observations of Justice Ryan in her judgment in June 2013 in
proceedings issued by the applicants in Australia that these provisions are ‘troubling’.
There is some evidence that some documents were explained to CT although I share the
concerns expressed by Justice Ryan in her judgment that ‘there is nothing in the
document which suggests that before the birth mother signed it that it was read and
translated to her’ at the time she signed it.’
o One concern was that women weren’t understanding these contracts, they were
in English and have draconian provisions.
, o Concerns over whether surrogate really understands terms she contracted to.
Daisy Deomampo and Amrita Pande, when interviewing Indian surrogates, found the
lack of bargaining power exacerbated by the impression that there are many other
women ready for the chance to act as surrogate mothers.
o Surrogates would not confront doctors and lawyers on crucial issues related to
their payment for fear of losing their contract.
o Amrita Pande: ‘Although there are more couples waiting to hire a surrogate than
there are women waiting to be surrogates at the clinic, the contract, clinic rules
and the counselling reiterates the disposability of the surrogates.’
Quite often surrogates required to move into surrogate centres away from your family.
o Clinic can monitor and maintain surrogate’s health.
o May be a good thing if away from society that stigmatises surrogacy but you
might be crammed into confined conditions, away from family/children, no
support etc.
o Keeps surrogacy out of public view, it is a way of maintaining the social norms of
traditional reproduction even as surrogacy becomes more and more common.
India banned surrogacy even though it is a very lucrative industry (it brought in $2.3
billion dollars a year)
Sharmila Rudrappa: “With this current ban, if the past offers any lessons, surrogacy
brokers will in all probability map out global routes to continue their brisk trade in
reproduction, moving working-class pregnant women from one country to the other to
take advantage of the uneven juridical-legal terrain of country-specific laws that govern
surrogacy.”
o Sharmila Rudrappa expresses concerns that brokers are likely to evade legalities
by moving around.
o Same sex couples were not allowed to use surrogates in India so brokers would
get women from Kenya, ship her to India where she lives 6 months pregnant and
back to Kenya where she gives birth and then baby given to same sex couples.
If transational surrogacy is inevitable, perhaps the most pressing concern should be to
ensure that surrogate mothers give properly informed consent and are not subject to
oppressive and exploitative contractual terms.
o Perhaps a future international convention on transnational surrogacy might
introduce minimal requirements such as that women should never be expected
to sign contract they cannot understand.
The Law on Surrogacy
Surrogacy Arrangements Act 1985
o s1 Meaning of “surrogate mother”, “surrogacy arrangement” and other terms.
o s1A Surrogacy arrangements unenforceable
o s2 Negotiating surrogacy arrangements on a commercial basis
o s3 Advertisements about surrogacy
o s4 Offences
It is not comprehensive, it is piecemeal.
Act was a response to a high-profile case (Baby cotton case). British woman acted as a
surrogate to Ukrainian couple via a US agency and it caused a lot of controversy.
The Act isn't trying to endorse or promote it, it is trying to control and discourage it.
, How are surrogacy arrangements regulated?
What might a surrogacy arrangement include?
o Expenses
o Payment for labour
o Bonuses for the type of child produced
o Penalties for certain behaviours during pregnancy
s1A No surrogacy arrangement is enforceable by or against any of the persons making it
o If surrogate changes her mind and says she wants to keep the baby, the
surrogacy arrangement is not enforceable.
Commercial surrogacy arrangements
s2 prohibits negotiating to make a surrogacy arrangement on a commercial basis
Advertisements seeking or offering surrogacy arrangements are prohibited (s3)
o Makes it quite difficult to meet someone for surrogacy
It is an offence to offer a reward or profit for the gestational mother
o BUT can be offered payment for expenses (Re C)
Usually around £10,000
o Re X v Y [2008] EWHC 3030 (Fam) – more than expenses: they let the surrogacy
arrangement take place even though payment was more than just expenses.
o Expenses were considerably higher than the usual payment for expenses but it
was still allowed.
But XX v Whittington Hospital NHS Trust 2017 EWHC 2318 (QB) -> Woman not awarded
damages to cover the cost of a commercial surrogacy arrangement abroad.
o Claimant was suing for damages because there was failure to diagnose her
cervical cancer which meant she couldn't bear children. She had frozen eggs she
wanted to go to USA and surrogates. She said these costs should be reimbursed.
She argued she had to go US for it as here it is difficult to find one because of the
ban on advertisement and because the lack of certainty in enforcing them.
o Judge acknowledged attitudes to surrogacy had changed but whilst it is true
same policy reasons don’t stand anymore, it’s not for me to change the law, it is
for parliament to change the law. He did allow some costs to be reimbursed for
surrogacy arrangement in the UK but not the costs to go US to do it.
NB: Ban on commercial involvement in surrogacy means that access to professional
expertise such as legal advice has been limited.
o Organisations like Childlessness overcome Through Surrogacy (COTS) and
Surrogacy UK help out commissioning couples in touch with potential surrogates.
o Nevertheless, lack of clear and accurate information on the legal consequences
of surrogacy has resulted in some people entering into complicated and at times
decidedly ill-advised arrangements.
How are child welfare concerns addressed?
Most surrogacy arrangements require the assistance of fertility services
Welfare protections in HFE Act therefore apply
o S13(5) HFE Act 1990: clinician must consider welfare of:
The child born
Any other children who may be affected by the birth
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