women & surrogacy arrangements

[TearingDownTheWall]

I read this legal blog recently and was shocked by this case. It is a horrifying account of male entitlement and treating women like a baby vessel by a same sex couple.
Essentially 2 affluent, intelligent men set up surrogacy arrangements with 2 women, treating them like chattel and showing absolutely no regard for them other than as a means to deliver them a child. Throughout the court hearings they continued to show zero regard or understanding of how unacceptable their behaviour was. It's utterly depressing.

Suspicious minds and the baiili transcript baiili

[VestalVirgin]

Oh, I thought it was about a heterosexual couple. Men using women as chattel isn't really new, is it? It doesn't surprise me in the least that they treat women just as shitty when it comes to surrogacy. I suppose the interesting twist is that it's gay men.

Glad the court made a reasonable decision. Though I really don't see why the assholes should be allowed to see the kid, the law and the fact that one of them is the biological father probably left no other choice.

[TearingDownTheWall]

I think it was the utter thoughtlessness to the women that took my breath away. To stand up in court and feel this was all ok, that you are the good guys and these women are being clingy and "hormonal" after giving birth to your child...it blows me away!

[LassWiTheDelicateAir]

The only shred of comfort in the whole sorry story is X seems to have a partner and family who support her.

This and similar stories I'm afraid make me no longer unquestionably go "ah, isn't it lovely male gay couples can have babies"

Germane Greer's comments about Elton John and David Furnish were very badly framed and I'll considered by being an attack on the children and therefore diverting attention from the real issue.

[TearingDownTheWall]

They put a maximum compensation value on a medical issue resulting in a hysterectomy of 1k. I wonder how much they would value one of their testicles if list through negligence. Bet it would be significantly more.

[SpidersFromMars]

I do think there should be an impartial assessment though - I think leaving it to recipients to assess competency is bound to cause issues.

[Gini99]

I don't think it's the fact that they're gay that is the issue, it's that it highlights the utter inadequacy of our surrogacy laws. The existing law was written on the hoof more than 25 years ago before we had an international fertility industry and before we had widespread public internet use. The law supposedly only allows altruistic/non-compensated surrogacy but the above developments have made that a complete sham. Whatever you think about compensated surrogacy, there is no way that we should have this essentially unregulated system in which women can be exploited like this. The arguments for surrogacy tend to be based around women having the freedom to do as they wish with their own bodies but that freedom is illusory if there is nothing to ensure that they have the information and understanding to give consent and the safeguards put in place to make sure that they get adequate protection for the risks that come with any pregnancy. The two women in this case were both clearly very vulnerable and were taken advantage of by people who treated them as service provers.

[OddBoots]

That account is heartbreaking. I have been a gestational surrogate three times (once for one couple and twice for another) and the treatment I experienced bears no resemblance at all to what is described there.

[TearingDownTheWall]

Gina, I agree, the women were exploited but frighteningly the men involved didn't think they'd behaved horribly. They were happy to share it with the court and had to be forced by cross examination to review some of their behaviours. Its exploitation crossed with entitlement.

[OddBoots]

"I do think there should be an impartial assessment though - I think leaving it to recipients to assess competency is bound to cause issues."

It may have changed as my youngest surrogate child is over 10 now but it always used to be that to have fertility treatment in a registered clinic in the UK you needed to have the case go through an ethics committee which included all those involved having an in depth interview with a specialist psychologist. Maybe this is why this couple chose to go abroad.

[VestalVirgin]

The arguments for surrogacy tend to be based around women having the freedom to do as they wish with their own bodies but that freedom is illusory if there is nothing to ensure that they have the information and understanding to give consent and the safeguards put in place to make sure that they get adequate protection for the risks that come with any pregnancy.

It is much like prostitution - under the guise of "freedom", protections that would have prevented vulnerable women being harmed even further are taken away.
If it was about freedom, then men would be allowed to sell their organs, and that would be called freedom, too. But that's illegal, and with good reason. As should surrogacy.

I am for making surrogacy illegal, period. Laws need to be changed so that doing it outside the country doesn't change anything. The woman who gives birth to a baby ought to have parental rights, as should the woman whose eggs were used, and it shouldn't be possible to sign those rights away.
That would mean that non-profit surrogacy would still be possible, or even for-profit surrogacy - but a woman could always get her baby back by going through the courts, just as any other woman who gave birth to a baby.

The safeguards you mention should be in place in any IVF clinic as an addition to that.

[TearingDownTheWall]

Yes, I think they have circumnavigated the formal procedures by using Facebook groups for introductions and then fertilisation overseas. I think it shows the current legal procedures are well behind where they need to be.

[OddBoots]

At the moment in England and Wales (it is similar but slightly different in Scotland)any woman that gives birth does have parental rights with regard to that child (as does her husband if she is married), the parental order cannot be applied for until 6 weeks after the birth and no signed agreement can over-ride that. Once it has been applied for it takes months and the involvement of a court appointed guardian for a parental order to be granted.

VV, do you mean that you think a surrogate should be able to retain parental rights for that child until he or she is 18?

[Gini99]

Yes and the law that old boots describes above also applies if the child has been born to a surrogate abroad. The problems are even worse then as trying to work out whether the woman consented when they might (a) not have ever met the couple (b) be illiterate and unable to speak English (c) be in a position of such financial disparity with the intended parents that the amount of money is life changing (d) have huge family pressures that are unknown to the court (e) be untraceable. Then what is the court supposed to do when they have a couple holding a baby and they have to decide what's best for that baby? E.g. look at this case where the couple tried to get the mother's consent from the clinic and 'the only response they received was a DHL package contaning a single sheet of paper with an 'obscene gesture' printed on it.'

I do think our system is set up in a way that gives legal sanction to exploitation of women. I'm undecided on whether I think paid surrogacy should be legal but I don't think that even the keenest supporters could really agree with the system we currently have.

[VestalVirgin]

VV, do you mean that you think a surrogate should be able to retain parental rights for that child until he or she is 18?

Retain, yes. If she immediately says she wants to keep the child, she keeps it.
If the child has lived three years with the genetic parents, then that's a bit trickier, as in that case, the child's best interest should be considered. But in that case, she should be able to get visitation rights, just like any glorified sperm donor who never showed any interest in his child before is able to.

Simply ignoring any surrogacy agreement when it comes to parental rights might be sufficient to cover most cases, but there is of course the problem of the financial burden, that the birth mother of any child bears. If she keeps the child, then the financial burden of that would be added to that of the pregnancy, and that's a problem - especially in such cases where the gene donors decide they don't want a disabled child.

That could be covered if genetic parents were held responsible, for which it would be necessary to hold fathers responsible in a much more efficient way than is done at the moment.

It has always been very easy for men to exploit women in order to spread their genes. Surrogacy is just enabling women to join in the exploitation of other women.
I think that the safeguards we need against that sort of thing are much the same. It is just that sex is much harder to control than IVF.

If people who pay women for surrogacy knew that a) they may not be allowed to keep the baby and might only get the visitation rights that are traditionally given to genetic parents who aren't living with the birth parent, and b) they won't get their money back in any case and c) might have to pay child support - then I hope that would discourage such horrible behaviour.
Or is the problem only that people don't know about those laws?

We still need an universal basic income to make sure no woman is ever poor enough to have to resort to surrogacy OR prostitution, OR organ selling. But I don't have much hope that this will be the case anytime soon.

[Gini99]

If people who pay women for surrogacy knew that a) they may not be allowed to keep the baby and might only get the visitation rights that are traditionally given to genetic parents who aren't living with the birth parent, and b) they won't get their money back in any case and c) might have to pay child support

This is the case (whether or not the woman is paid) at the moment in this country. On (a) no surrogacy agreement is enforceable and the court can't override the mother's refusal to consent to the surrogacy so it's quite clear that the commissioning parents might not get to keep the child as was the case in the case in the OP (and might not even get visitation in other cases). On (b) yes, because the agreement can't be enforced there is no way that you can get your money back even if the mother has signed something to say that it can be returned. On (c) that would depend on the precise facts but in a case like the one in the OP where the woman isn't married and the intended father is also the genetic father then yes he could be liable for child support. It doesn't seem to have put them off.

It's also currently the case that if the intended parents don't want to take the child then there's nothing the surrogate mother can do to force them to do so. All she can do is give the baby up for adoption if she does not want to raise the baby herself. That puts the woman in a pretty risky position.

Your approach is all about rights but parenthood is really about responsibilities. What you seem to be saying is that the surrogate mother couldn't divest herself of her responsibilities to the child, even if the child is being well looked after by the intended parents and everyone is happy with that.

[LassWiTheDelicateAir]

I am for making surrogacy illegal, period.
I agree.

[LassWiTheDelicateAir]

What you seem to be saying is that the surrogate mother couldn't divest herself of her responsibilities to the child, even if the child is being well looked after by the intended parents and everyone is happy with that.

Any woman who gives birth to a child can give up all rights and responsibilities for that child. There are formal procedures for doing so.

It doesn't happen very often but it is legally possible for a woman to walk out of a maternity ward saying she wants nothing to do with the baby. There will still be paperwork and procedures but a woman cannot actually be forced to accept responsibility for a child if she is determined to give it up.

[LassWiTheDelicateAir]

And equally of course setting genuine unsuitability as a parent aside any woman who gives birth cannot be forced to give up that baby

[Trixieceratops]

They really didn't give a shit about her health or circumstances did they? I used to be ok with surrogacy but I've read a few really concerning cases now.

[LassWiTheDelicateAir]

I agree Trixy I used to be OK with it, whether heterosexual or homosexual couples but have definitely changed my mind.

[caroldecker]

Lass I can see that working if the child is adopted. But can the father raise the child and claim maintenance from the mother?

[LassWiTheDelicateAir]

Once you officially give a child up for adoption you are not liable to maintain it.

It is possible in Scotland ( or certainly used to be ) for an unmarried father to adopt his own child. The child became legitimate that way. The rules on legitimacy have changed so that may be a historic quirk. But adoption still severs all responsibility.

[LassWiTheDelicateAir]

It's quite common for example for a step parent to adopt their spouse's natural child. The other natural parent is then out of the picture.

[OddBoots]

The courts and their reps I was involved with spoke of parental order as a form of adoption. I needed to sign to give up my rights and it was made very clear what that meant. It's also important to remember that however any of the adults involved feel at the absolute centre is a child and their rights trump everyone else's.

[Gini99]

Any woman who gives birth to a child can give up all rights and responsibilities for that child. There are formal procedures for doing so.

If you are talking about the law in this country then the only way of doing that is through adoption or, in surrogacy cases, through parental orders, which as Old Boots says are essentially a form of adoption. VV is saying that even if there is a parental order and the birth mother has consented to the 'adoption' she should keep her rights. As parental rights are really about responsibilities I am guessing that also means she remains responsible.

That's quite an odd position. Imagine two women who give birth on the same day and want to give the child up. One has a child who is genetically hers, she can have the child adopted and lose all her rights/responsibilities as soon as the adoption goes through. The other is not genetically related to the child and always intended to hand the child to the genetic parents. She can't retains her rights/responsibilities despite the 'adoption'. It's not really clear why there should be that distinction, unless VV means that it shouldn't be possible in either case.