Biolaw - Conception and Surrogacy

Question 1

What is donor conception?

Answer 1

Use of donated gametes (eggs and sperm) or embryos for insemination

Question 2

Legal framework for donor conception

Answer 2

o Informal private arrangements are not regulated

o Clinics:
 Require a licence – s.4(1)(b) 1990 Act
 Consent required – schedule 3 1990 Act

Question 3

Main issues with donor conception - donor anonymity

Answer 3

 Donor conceived and born before April 2005
* Gamete donation was anonymous
* Could access non-identifying information (e.g. donor’s ethnicity, origin, occupation

 Human Fertilisation and Embryology Authority (Disclosure of Donor Information) Regulations 2004
* From 1 April 2005, UK law lifted donor anonymity
* Child had right to personal identity
* Once child reaches age 18 can access identifying details about donor
* Problem:
o Less donors as concerns over anonymity

Question 4

Main issues with donor conception - payment of donors

Answer 4

 In UK payment of gamete donors is a criminal offence – s41 HFE Act
 Can be paid compensation for expenses
* Fixed sum for sperm donors - £35
* Egg donors - £750 per cycle
 Egg sharing schemes – A woman who needs IVF may agree to donate half of her harvested eggs in return for free or reduced fees for her IVF treatment

Question 5

Donor conception - establishing maternity

Answer 5

o Woman who gives birth to child is the legal mother – s.27 1990 Act, s.33(1) 2008 Act, and common law
o Cannot be regarded as mother merely because of egg donation – 2008 Act s.47

Question 6

Donor conception - establishing paternity (married and unmarried couples)

Answer 6

o MARRIED COUPLES
1. Presumption of paternity within marriage – s.38(2) 2008 Act, s.28(5) 1990 Act
* Can be rebutted by genetic evidence
2. Consent to treatment – s.35(1) 2008 Act
* Mother’s husband will be the father unless it is shown he did not consent to the treatment
* Re CH (Contact: parentage)
o Husband had given consent to wife’s treatment with donor insemination – he was registered as child’s father
o Couple divorced and mother sought to prevent ex-husband from obtaining contact order on grounds he was not child’s biological father
o Court found it would be contrary to intentions of Parliament to deny that he was child’s father – once consent is given, he remains father regardless of biological link

• UNMARRIED COUPLES – Woman is not married or in civil partnership
  o Before April 2009 – man who woman was treated with is the father
  o After April 2009 – Agreed fatherhood conditions (s.37 HFEA 2008)
  1. Fatherhood obtained by man giving notice as to his consent to being treated as father of any resulting child
  2. Fatherhood obtained by woman also giving consent for man to be treated as father
  3. Fatherhood obtained by no withdrawal of consent or variation
  4. Fatherhood obtained by parties are not in the prohibited degrees of relationship with each other

Question 7

Establishing parentage - same sex couples

Answer 7

o 1990 Act
 No provision for female partner to acquire parenthood
 Even if she provided the eggs she would still be treated as a legal stranger to the child
o 2008 Act
 Equalises the civil partnership – same position as married couples – s.42 HFEA 2008
 Agreed female parenthood – s.44 HFEA 2008 (partner is not an agreed ‘mother’ but a ‘second legal parent’ – problematic terminology

Question 8

Establishing parentage - single women

Answer 8

o If a woman receives treatment on her own, and does not want anyone to be her child’s second parent (or if her partner does not consent to the treatment), she will be the only legal parent

Question 9

Establishing parentage - transgender parents

Answer 9

o Statutory scheme does not specifically address this
o If their gametes were stores before the gender re-assignment surgery, their sperm or eggs (or embryos) might be treated as a third party (donated) material

Question 10

Parentage disputes (1 case)

Answer 10

o Leeds Teaching Hospital NHS Trust v A
 Both couples (Mr/Mrs A and Mr/Mrs B) both had fertility treatment
 Wrong sperm was used in procedure meaning Mrs A was pregnant with Mr B’s sperm
 Mr A had not consented to this treatment so not able to acquire paternity – who was the father?
 Court held:
* under HFEA 1990, Mr A could not be the father as he did not consent to use of Mr B’s sperm with his wife’s eggs
* Mr B also could not be the father as the mere genetic relationship did not give rise to a parental relationship where none was intended
* Court made it clear that the twins should not be separated from Mr and Mrs A so Mr A could seek fatherhood via adoption proceedings

Question 11

What is surrogacy?

Answer 11

o Warnock Report – practice whereby a woman (surrogate mother) becomes pregnant with the intention that the child be handed over to the commissioning couple after the birth
o Partial Surrogacy – surrogate mother’s eggs are used, so she is both genetic and gestational mother
o Full (gestational) Surrogacy – eggs of commission mother or of donor are fertilised and implanted into surrogate
o Surrogacy is not illegal in the UK, but it is not possible to enter into a legally-binding surrogacy agreement – surrogacy agreement is unenforceable

Question 12

Arguments against surrogacy

Answer 12

o Situation is potentially harmful for children – liable to produce litigation over them
o Harmful to gestational mother – gets attached to baby
o Surrogacy exploits surrogates – seen as form of reproductive slavery, inconsistent with human dignity and demeaning to women
 Surrogacy farms in Thailand, India etc – surrogates separated from family to ensure money given to her is spent only on herself and the baby. Made to eat certain foods, take medicines etc during pregnancy
o Paying of surrogates is close to ‘baby selling’

Question 13

Arguments for surrogacy

Answer 13

o Reproductive autonomy – if a woman wishes to become a surrogate mother why should she not be allowed to?
o Surrogacy is inevitable and an old practice – if it was outlawed, it would lead to a black market
o Widens variety of family forms (e.g. gay couples, single men)
o Surrogacy only has the potential to be exploitative, it is not always ethically problematic
o Rather than banning practice altogether, we should focus on ensuring interests of parties involved are protected
o Concerns over potential exploitation often only arise in cross border surrogacy arrangements

Question 14

Surrogacy overseas

Answer 14

o India
 Surrogates had little to no control over the contracts
 Indian surrogates made to live away fro, their families in surrogacy hostels due to stigma and a desire to control surrogate’s body
 Now banned in India, Nepal and Thailand

o Cambodia
 Since commercial arrangements have been banned in India, Nepal etc, there is a rise in Cambodia
 Legal and ethical status is still questionable- potential parents warned to stay away

o US, Russia, Georgia, Greece, Canada, Mexico and Kenya
 More popular destinations
 US – costs $130,000
 Georgia and Ukraine – costs between £30-50 k

Question 15

Legal framework for surrogacy

Answer 15

o Surrogacy Arrangements Act 1985 and HFE Act 2008
 It is not illegal to enter into surrogacy arrangement, but series of offences associated with it
 Unlawful to negotiate or arrange surrogacy on a commercial basis
 Unlawful for anyone to advertise surrogacy services
 Unlawful to make an offer that constitutes a reward or profit for the gestational mother although she can be offered payment of expenses

o Surrogacy Arrangements Act 1985
 S.1A - No surrogacy arrangement is forceable by or against any of the persons making it
 Not legally enforceable
 Child’s welfare is paramount
 S.2 and 3 – prevents commercial involvement

o Warnock Report 1984 – para 8.17
 Even in compelling medical circumstances, the danger of exploitation of one human being by another appears to outweigh the potential benefits
 The fact that people treat others as a means to their own ends must always be liable to moral objection

o Brazier Report 1998
 Recommendations:
* Surrogacy contracts should continue to be unenforceable
* Only legitimate expenses should be paid to surrogate mother
* All surrogacy agencies should be registered with the Department of Health, no commercial agency should be allowed
* There should be a code of practice issued including the need for greater regulation and the tightening of ‘expenses’ payments
 Gov not taken any steps to implement it

o Welfare Principle – s.13(5) HFEA 1990
 Before treatment services provided, account of welfare of any child born/existing children is paramount

Question 16

Gaps in legal framework for surrogacy

Answer 16

 Partial surrogacy arrangements (private) are unregulated
 Overseas surrogacy cannot be regulated by UK law
 Ban on commercial involvement limits professional advice – leads to misinformation

Question 17

Surrogacy and parenthood

Answer 17

o H v United Kingdom
 Girl born argued UK laws breached her right to respect for private life under Art 8 ECHR
 Lives with her biological father, and his same-sex partner, and is in regular contact with surrogate and her husband
 Birth certificate states the surrogate mother and surrogate mother’s husband are her ‘mother’ and ‘father’
 Judge in family court ordered both couples have parental responsibility
 Girl argued automatic registration of the surrogate’s husband on birth certificate as ‘father’ was outdated and violated right to her identity
 ECHR rules the case was ‘manifestly unfounded’

Question 18

Surrogacy and mothers

Answer 18

 In UK the surrogate is the legal mother
* S.33 HFEA 2008
o The woman who is carrying or has carried a child as a result of placing in her of an embryo or of sperm and eggs, and no other woman, is to be treated as the mother of the child
 Commissioning mother is NOT the mother, even if her eggs were used
* S.47 HFEA 2008
o Woman not to be treated as mother merely because of egg donation
 UK law puts surrogate mother in difficult position of having legal responsibility for the child that they never wanted and leaves commissioning couple with no legal responsibility for the child whose creation they brought about
* Jackson – intention in surrogacy arrangements should be taken into account, and this should be legalised (however may create uncertainty)

Question 19

Surrogacy and fathers

Answer 19

 Surrogate’s husband is the father of the child
* S.28 1990 act, s.38 2008 Act
 If surrogate is married to another woman or in a civil partnership:
* Assumption that her spouse or civil partner is the child’s second parents
 If surrogate is single, and if commissioning father’s sperm was used:
* Commissioning father will be father of the child under common law
 Commissioning parent whose gametes were not used in child’s conception:
* Could become child’s father or second legal father, along with surrogate through agreed parenthood conditions

Question 20

What are Parental orders?

Answer 20

 Transfer Parenthood – via adoption, parental order

Question 21

Parental Order Conditions

Answer 21

• S.54 HFE Act 2008
  o One party must be genetically related to child
  o Applicants must be a couple – surrogacy previously not available to single applicants
  o Child must be living with CC
  o Surrogate must consent to the order unless for rare circumstances
   Re D and L (Minors Surrogacy) – Twins born in India. Indian surrogate could not be found to give consent. High Court waived need for her consent as it was in twins’ best interests for a parental order to be granted
  o No money or benefit other than expenses have been exchanged
  o CC should be over 18
  o Applicants must have applied within first 6 months of birth however;
   Re X (A Child) (Surrogacy: Time Limit)
• Couple applied 2 years and 2 months after birth
• Court overlooked time limit and granted parental order as in best interests of child – otherwise child would be living with the couple without any proper legal authorisation

Question 22

Parental orders - single parents

Answer 22

o Re Z
 Child had been conceived with applicant father’s sperm and a donated egg using unmarried surrogate mother
 Father obtained a declaratory judgment, relieving surrogate mother of any legal rights or responsibilities for child
 Fundamental argument of father was requirement of s.54(1) constituted a discriminatory interference with a single person’s rights to private and family life (Arts 8 and 14)
 Legislation was contrary to Art 12 which protects right to found a family
 Case was rejected on basis that only two people being able to apply for a parental order has been a clear and prominent feature of legislation throughout
 Subsequently, gov conceded that s54(1) and (2) HFEA 2008 are INCOMPATIBLE with rights of father and child under Art 14 and Art 8

o Human Fertilisation and Embryology Act 2007 (Remedial) Order 2018
 As of 3 Jan 2019 single persons can apply for parental orders

Question 23

Parental Order and Payments

Answer 23

o S.54(8) – no money/benefit exchange BUT court may authorise payments

o Re X and Y (Foreign Surrogacy)
 Couple made surrogacy agreement with Ukrainian woman who gave birth to twins using anonymously donated eggs fertilised by male applicant’s sperm
 Couple paid €235 per month and lump sum of €25,000 on birth
 Although there had been payment, consent had been given and welfare of child was paramount concern – granted parental order as otherwise welfare of child would be compromised

o Re L (A Minor)
 Although surrogacy took place in USA, in UK no payments could be made other than reasonable expenses and payments made went beyond this
 Only in rare cases would the court withhold an order – usually would grant parental order regardless of payment
 Jackson – UK’s prohibition on commercial surrogacy is therefore completely ineffective

Question 24

Surrogacy law reform - Law Commission problems and proposals

Answer 24

1. Law does not make the intended parents the legal parents of the child at birth
    Propose that, if the requirements in the new pathway are met, and subject to the surrogate’s right to object during a defined period, the intended parents are the legal parents of the child from birth
2. Problem with surrogate-born children accessing information about how they were conceived
    Propose a new national surrogacy register to hold information about the surrogate, the intended parents and any sperm or egg donors
3. Law on payments is unclear and difficult to apply in practice
    Invite consultees’ views on potential categories of payment that the intended parents should be able to pay to the surrogate, in order to seek a consensus on this issue
4. Lack of safeguards for participants in a surrogacy arrangement
    Propose a new pathway to parenthood with built-in, pre-conception safeguards to protect the interests of all participants in a surrogacy arrangement
5. International surrogacy arrangements risk a child being left for long periods in a foreign country whilst waiting for a passport or travel documentation into the UK
    Think court scrutiny of international arrangements is important, but propose reforms to make it quicker to get the child back to the UK

Question 25

Surrogacy law reform - academic commentary

Answer 25

o Kirsty Horsey (2016)
o Having been crafted in 1985, it is now time to repeal Surrogacy Arrangements Act and start again with surrogacy – demand did not ‘wither on the vine’ as Warnock Committee hoped
o There is now a pressing need for new legislation that is able to cope with the demands of 21st century surrogacy, which muts be empirically grounded, facilitative and able to sensibly and sensitively encompass the increased use of international agreements
o Areas where the law needs reform – legal parenthood and parental orders
 Formula only works for heterosexual couple but what about couples where both want to be mother or where neither party wants to be mother
o Surrogacy in UK is imperfectly restricted rather than being properly and safely regulated

o Prosser and Gamble (2016)
o When looking at surrogacy reform we should focus on how we can facilitate parents and surrogates engaging in surrogacy on a fully informed and equal basis, without either side taking advantage of the other
o Surrogacy (both in UK and internationally) is here to stay in many different forms, and we need to manage the consequences of that for families and children – it is the duty of the law to ensure that the welfare of children is protected

o Emily Jackson (2016)
o In past it was plausible to argue that it would be inefficient to set up a cumbersome bespoke framework for the regulation of surrogacy, when the numbers of births each year are so low
o However, with cuts to the court’s service budgets, it seems extraordinary that international commercial surrogacy continues to require full court hearings
o Given that pre-approval of parental order might be in best interests of IPs and children by ensuring neither is left in legal limbo during child’s first months of life, it seems like Ministry of Justice should seize the opportunity to deal with our expensive, inefficient and ineffective law on surrogacy