Marilyn Stowe: We must clear up the law on surrogacy

Under English law, the “gestational” mother is also the legal mother of a child, whether or not she’s the genetic mother, and if she is married, her husband is presumed to be the legal father. There’s no recognition in the law regarding an agreement made between a surrogate mother (who may not even be the
genetic mother) and the intended parents.

This means that legally the surrogate mother can keep the baby and the intended parents can’t legally demand she hand the baby over without a court order. Or, putting the bootie on the other foot, the intended parents can decide they don’t want to go on, and they can then leave the surrogate literally
holding the baby she never intended to keep.

Inevitably it is the cases of disputed surrogacy that get highlighted and a recent widely reported case in the Family Court really begs the question whether current English law in this emotive area still applies to the practical reality facing both surrogates and the intended parents who turn to them for help.

In the case in question, the dispute revolved around a disagreement on the nature of the original agreement. The surrogate mother claimed that she was always intended as the main parent for the baby girl, while the intended parents, a gay couple, one of whom had donated his sperm, maintained that the woman had agreed to be the surrogate so that they could form a family.

The surrogate and the child’s father had known each other for over 20 years. There were a lot of shenanigans in the case both in and out of the court room which gave the judge a less than stellar impression of the surrogate, her attitude to gay couples and her honesty when she agreed to be a surrogate. In the end, although the surrogate was the legal mother, the judge decided that the
child’s best interests were served by
living with her father and his long-term partner.

Apart from the emotional trauma of having to go to court, what is really interesting about this case is that it highlights how much law in this area needs an overhaul. The judge said that “the lack of a properly supported and regulated framework for arrangements of this kind has, inevitably, lead to an increase in these cases before the Family Court”.

The lack of formality is a clear contrast with some other jurisdictions like the United States. California, for example, provides front end support including psychological screenings and legal and medical advice so that the surrogate and intended parents are very clear from the outset where they stand.

Our lack of up-front support laying out what all sides are getting into is a recipe for potential dispute and it’s also responsible for driving prospective UK parents overseas to the US and India in search of greater security in their agreements.

It’s very easy to say that there are more important laws to change than surrogacy, and I’ve not been exactly silent in calling for a new law for cohabitant rights, but we maintain that in law, the welfare of the child is paramount, which is the basis of the judge’s ruling in this case. On that basis, it’s completely counter-intuitive to have a surrogacy law that doesn’t insist all parties lay out exactly what has been agreed and what will happen when the baby is born.

Deciding to have a child is a big decision for anyone. Asking someone else outside your relationship to be involved is an even bigger risk. For the sake of the surrogate, the intended parents and the child itself, it makes sense to take the uncertainty out of surrogacy agreements and help keep surrogacy agreements out of the courts.

Marilyn Stowe is senior partner with Stowe Family Law