Law Commission consulting on paid surrogacy in the UK

There is certainly precedent of special interest groups undermining safeguarding legislation.

Yes, but this is more than just safeguarding legislation. I can't see any way that the welfare principles could ever be overridden by a contract - as we often hear said the law overrides any contract you care to draw up; any surrogacy contract will be meaningless if it can be voided by the application of the welfare checklist.

It wouldn't shock me that much to see surrogates be allowed to charge more than just the expenses limit, so an end to 'altruism' only, and that be called commercialisation. But as the courts still aren't going to force surrogates to give up babies simply because of contracts, it'd just mean the framework we have now plus a greater financial risk for potential parents. Maybe with a bigger pool of surrogates.

As you rightly say, that would also preclude commercial surrogacy in the U.K.

I hope so, I'm concerned that these discussions are even taking place tbh and that there is a possibility that the Children's Act might be undermined. There is certainly precedent of special interest groups undermining safeguarding legislation.

The more I've read about surrogacy the more concerned I've become, I started out thinking it might be ok. Everyone seems to become blind to that mother-child bond and also blind to how risky pregnancy can be. I nearly died having my son and there have been long term health implications. I see my son and know that was worth it and I made aa free choice but to have a baby for someone else and hand it over? You can't put a monetary value on that impact on my health and compensate me for it as part of a commercial transaction.

Whilst it wasn't a surrogate pregnancy the case of the pregnant woman in Ireland on life support decaying because she was regarded as an incubator first and a person second should make us all pause for thought.

The analogies with live organ donation are good but ignore that this is also creating another person. We don't allow parents to sell or gift their babies under other circumstances so why is it allowable in this circumstance ?

Siblings are often put under considerable family pressure for live organ donation, that's why there is counselling and the opportunity to say they are not compatible even though they might be. There is plenty of evidence of family members being put under pressure to be surrogates, it can be explicit pressure or implicit where they feel like they'd be seen as selfish if they didn't try. If they truly don't want to be surrogates their only recourse might be to ensure a pregnancy didn't take.

The exploitation of women in India bothers me, glad Thailand decided it wasn't right.

I feel very sorry for anyone who desperately wants children and can't but allowing something that exploits women and children Ian not the answer.

But the creation of a class of children to whom the Children Act doesn't apply is not the answer and isn't realistic. And that's what we'd have to do

As you rightly say, that would also preclude commercial surrogacy in the U.K.

Whether or not your arrangement with your SIL was exploitative surely depends on your relationship with her and also her ability to understand the process. I'd imagine most family based surrogacy is freely volunteered and non exploitative but there are certainly cases where so called altruistic surrogacy exploits women, it depends on the individuals involved. Engaging a stranger to undertake pregnancy for financial gain is exploitative by it's nature.

It's certainly possible for the UK to be facilitating a contract against the wishes of the surrogate. A UK court might well have found that keeping the child with the surrogate isn't in the best interests of the child if they'd been asked to rule at the contract enforcement stage though, so it's possible the decision would be the same, just for different reasons.

But yes of course, they can only deal with what's in front of them at any given stage. There are a lot of decisions made in family courts that wouldn't have been made had things been done differently earlier. I think the legal framework we have that will prevent a fully US style system in the UK will also stop us from curtailing British people getting involved with overseas surrogacy.

Exactly GrabEm. It throws up some difficult issues but this is part of our society today - childless couples no longer have hordes of orphans and illegitimate babies to adopt (thank God!) and so other solutions to infertility come into play.

Whether you like it or not, infertility has always been with us and always will be, we just want to find ways around it that don't get all Handmaid's Tale.

As I said upthread, I feel guilty at having enough money to have used commercial surrogacy when others don't all have that option; but I don't feel it was exploitative. My SIL tried to do it for us (for free of course) but none of those embryos worked - was that exploitative?

I agree with that GrabEm. But then by the same token it is entirely possible for a pre birth contract in the US to be enforced against the wishes of the surrogate and against the best interests of the baby and the intended parents to return home with the baby to the UK. The UK is then basically facilitating a practice that would go against the Children's Act if it happened here. I understand that the UK authorities can only deal with what is in front of them however.

In terms of prevention, I am not sure how realistic this is.

British citizens are able to travel abroad if wished. Surrogacy is possible in many countries, legally or otherwise, so it will remain available to Brits with funds. This means some people will return home with a baby.

The only meaningful way to prevent them from getting a baby out of it is to take the baby off them, when it comes down to it. But making the decision based on anything other than Children Act principles would be as much a suspension of the backbone of our welfare laws as making a decision based on enforcing a contract would be.

I certainly agree that there is some awful exploitative behaviour going on. But the creation of a class of children to whom the Children Act doesn't apply is not the answer and isn't realistic. And that's what we'd have to do.

Where we differ is that I don't feel the US should be outlawed by this logic

Of course you don't, because you went to the US to partake in commercial surrogacy. It must be uncomfortable to consider some of the exploitation that occurs there.

I believe it's similar in Arkansas (as a result they attract alot of surrogacy business from other states)- in fact a man can be the sole legal parent there, rendering a child with no legal mother at all. A New York court actually referred to it as 'trafficking in children', and made the point that enforceable pre birth orders are at odds with child adoption laws where birth parents are entitled to a cooling off period once the child is born before any final legal rulings.

There ought to be a way of preventing UK citizens taking advantage of exploitative systems that are against our laws simply because they can afford it.

Um... yes... that's exactly what I'm saying too.

Where we differ is that I don't feel the US should be outlawed by this logic. Thailand, India etc - yes.

And if you bring home a baby born through surrogacy in another country then CAFCASS and the courts are already highly involved - getting a parental order is (quite rightly) a complex process with lots of hoops to jump through to satisfy the courts that it's in the child's best interests.

YY I'm not sure all women donating eggs in the UK are doing it altruistically, given the IVF discounts. Realistically there must be some women who've donated because they wouldn't be able to afford the IVF otherwise.

The reason why people go to California is because they can be legally named as the parents on the birth certificate before the child is even born. Thus the mother is completely erased.

This is also why gestational surrogacy has become so popular. It’s all about disrupting the link between the woman and the child she is carrying. The baby might have known her intimately and crave her from the moment they are born, but they are not ‘hers’.

Just in response to the claim that surrogacy agencies in the US are well run and professional- the agency in the following link withheld a woman's baby and considered putting it up for adoption to 'recoup their losses'. Sounds extreme but surely just a natural consequence of the commercialisation of pregnancy and treating human beings as commodities.

www.google.co.uk/amp/s/www.independent.co.uk/news/world/americas/surrogate-mother-pregnant-twins-own-baby-jessica-allen-omega-family-global-san-diego-a8034901.html%3famp

The contracts overseas are often legally enforceable, whereas they aren't here. I can't remember which channel did a documentary on surrogacy in India, but it was mainly poor women being pushed into it by their husbands. After Thailand banned international surrogacy then India took a lot of the custom - it's much cheaper than going to the US.

When DH and I were going through IVF, egg sharing was mentioned - so if I'd agree to give half the eggs collected I could get a substantial amount of money off treatment. This sat very uneasily with me, as again it's the poorer and more disadvantaged women who will accept this offer. To me donating eggs altruistically is very different than doing it for money.

Some countries have made it illegal for foreign nationals to have surrogacy arrangements there. There ought to be a way of preventing UK citizens taking advantage of exploitative systems that are against our laws simply because they can afford it.

people are increasingly going overseas where the UK can't regulate what goes on. Surely it's better to keep them here where it can be regulated as we see fit?

That argument could be applied to adoption without checks and balances couldn't it? Whereas instead of going 🤷🏼‍♀️ 'people go abroad to buy possibly trafficked babies anyway, let's make it easier for them to do that' the government said 'hang on, international adoption is open to exploitation and abuse, let's make all all international adoptions subject to checks as close to domestic adoption as we can manage'

IDC if people are going abroad for surrogacy, that does NOT mean it should be legal to do it commercially here.

I think people go overseas because they want more control and can treat it as a business transaction. Even the term 'commissioning parents' is very telling as is comparing the surrogate with staff.

Are people going overseas because there is a lack of women willing to volunteer to be surrogates? So paid for surrogacy is intended to increase supply?

Or are people going overseas because it's easy to guarantee that they get to keep the baby? Therefore they need to reduced a women's right to change her mind?

Well the bottom line is that a review of UK surrogacy law is needed. As Sir Whatshisface said in announcing the review, surrogacy has increased tenfold and people are increasingly going overseas where the UK can't regulate what goes on. Surely it's better to keep them here where it can be regulated as we see fit?

With hundreds of thousands of infertile couples (and where less than 5,000 children are adopted each year so stop saying that's a solution) surrogacy is always going to be an option for a few here in the UK.

As a feminist I would like to see a situation where the only women doing surrogacy are those who want to. Those who loved being pregnant and having babies but who have completed their own families, and are not doing it out of financial necessity but who genuinely want to help other families have a baby. I'd be happy with that.

I don't go so far as to say we could never have somewhat commercial surrogacy, but it'll never look like what they do in eg the US. The framework we've got could potentially allow prospective parents to make an arrangement with a surrogate and pay a lot more for it now, but they wouldn't get a legally enforceable arrangement out of it.

It might work when things are good between all parties, but the instant there's disagreement, if the family courts are involved then they are just not going to give a shit about enforcing the terms of a contract. And nor should they. It'll be the Children Act principles.

strawberryfilter that sounds like a lot of rationalising to me. Perhaps your individual specific surrogate wasn't being exploited but frankly I don't care. A system that enables and encourages exploitation of economically disadvantaged women's bodies will always be morally repugnant.

The idea that SS would refrain from asking such a close relative if they want to take care of the child in the event that parents can't/won't is so inherently implausible in the context of UK child welfare laws that any surrogate thinking a legal agreement could protect her from it clearly has no understanding of the legal landscape. Which is worrying in itself really

Exactly. Our legal system will never make commercial surrogacy possible.