In surrogacy arrangements, the surrogate agrees ‘to become pregnant and deliver a baby with the intention of handing him or her over shortly after birth to the intended parents, who will raise the child’ (per the Law Commission). Despite the intention for the child to be raised by the intended parents, the surrogate under UK law is the legal mother of the child (in some instances so will the surrogate’s spouse/civil partner be a legal parent). For the intended parents to become legal parents, a parental order is necessary, with legislation stating that no money should be given to the surrogate mother other than "expenses reasonably incurred". This article will analyse the meaning of this phrase and explore the problematic nature behind it.
Legal Parenthood
The parental order is a court order specifically designed so intended parents can become legal parents. Legal parenthood itself is important for a variety of reasons as it impacts the child’s nationality, inheritance and financial responsibility. Being granted the parental order will also allow intended parents to have parental responsibility. This is important in the surrogacy context where the legal parent, whoever it may be, may need to decide on the child’s medical treatment if the need arises. For a PO application to be successful the court’s paramount consideration is child welfare and satisfying s54/54A requirements in the Human Fertilisation and Embryology Act (‘HFEA’) 2008. Reasonable expenses (s54(8)/54A(7)) are one of the requirements that need to be met. For this the courts needs to be satisfied ‘the intended parents gave no money or benefit other than “expenses reasonably incurred” for or in consideration of:
(1) the making of the order;
(2) any agreement of the surrogate (and her spouse if applicable) to the making of the order;
(3) the handing over of the child to the applicants; or
(4) the making of arrangements with a view to the making of the order unless retrospectively authorised by the court.’
This requirement reflects the general attitude of UK legislation as it fits into UK law promoting non-commercial surrogacy and an altruistic framework. Per s1A Surrogacy Arrangements Act 1985 surrogacy arrangements are unenforceable ‘by or against any of the persons making it’ and per s2(1) it is an offence ‘to play a part in a commercial surrogacy arrangement.’
Case Law
Despite the prohibition the courts have authorised payments that have exceeded reasonable expenses. For example, in Re X and Y (Foreign Surrogacy), it was accepted payments made clearly exceeded reasonable expenses incurred by the surrogate. ‘A monthly payment of €235, plus a lump sum of €25,000 for the birth of the twins’ was paid and it was admitted ‘the lump sum was to enable the surrogate to place a deposit to purchase a flat.’ Yet, the court still authorised the payments and granted a parental order advancing its justification that child welfare required the children to ‘be regarded as lifelong members of the intended parents’ family.’ Further examples where payments have been authorised include Re P-M (2013) and Re C (Parental Order) (2013). The outcomes are the more desirable in that intended parents become legal parents as originally intended and children are recognised as the child of the intended parents in the eyes of the law. However, in reaching the outcomes the courts have stretched the requirement of reasonable expenses. As one writer submits, with the consideration of child welfare it is now ‘unlikely courts will ever refuse retrospectively to authorise payment and grant a parental order.’ Clearly, refusal of the parental order would not be in the child’s best interests so can reasonable expenses ever fit when welfare demands something else. With this in mind it will be considered whether the requirement should remain.
Effectiveness v Commercialisation
An argument in favour of removing reasonable expenses is that it would make the law more effective; this is because it eliminates the uncertainty of the current law. As ‘reasonable expenses’ is undefined it is better to remove it altogether, by leaving it undefined there is no clear cut-off point for when expenses exceed being reasonable. Also, if the prohibition is to stand only in ‘the clearest case of the abuse of public policy’, what is the clearest case? Thus, the ambiguity present prevents certainty in the law over what payments can and cannot be made. Arguably, this leaves too much scope for the courts to interpret reasonable payments and if these payments can be authorised. Moreover, this scope has shown the reasonable expenses requirement to be ineffective as the courts have authorised payments in the above cases. Thus, the fear that the courts will be unlikely to refuse an order despite excessive payments may be well-founded especially as there are no clear limitations in legislation. Likewise, authorising excessive payments questions UK legislation prohibiting commercial surrogacy as, if the amounts paid are subsequently authorised, this is arguably akin to a commercial arrangement. As one writer submits, certain payments can be seen as ‘a direct payment for services rendered rather than the reimbursement of actual expenses.’ Therefore, if the reality of the situation is that parties can essentially pay to their discretion and have the payments authorised, it is arguably better to remove reasonable expenses as it is a prohibition that will not be upheld.
However, if it was to be removed there would be no certainty that this would be more effective. Parties being able to agree whatever payments they want does not necessarily mean the process will be more straightforward. This is because surrogacy arrangements would risk being commercialised, which is not what the current law intends. Hence, the law would have to accommodate for the fact that there is no limitation on expenses in place. For example, parties may dispute over the amount agreed, seek an extortionate amount or seek remedies from the court if agreed payments were not made. Consequently, by removing reasonable expenses there will have to changes to other parts of the legislation like s1A for parties to be able to recover payments. Arguably, changing the UK framework to a commercial one is not desirable. Even if ‘reasonable expenses’ is currently not adequately defined, simply removing it does not resolve the uncertainty in the law. Also, to remove it entirely could make it harder to regulate arrangements as it affords too much freedom for parties to agree whatever they would like. Alternatively, reasonable expenses should remain provided the law clarifies what they exactly are to eliminate the present vagueness and uncertainty.
Baby Buying/Selling v Payment for Services
If this provision is to be removed, the ethical debate around it would need to be considered. If removed and parties could pay at their discretion there is the argument that this would amount to baby buying/selling. It could be suggested that the parties are being induced to act as surrogates and intended parents through the payments are simply buying the baby. This risks the exploitation of the parties especially the surrogate in circumstances where she may be from a lower income background or less economically developed country. As noted, women in that situation may agree to surrogacy arrangements ‘in order to augment their family income.’
Conversely, it is submitted that payments should not be seen as buying/selling. More appropriately, the payments can be seen as payments for the services provided by the surrogate. Rather than women being exploited the payment for services ensures they are not. Just as legal fees or medical fees will be paid to the relevant personnel, the payments to the surrogate should be seen in the same light. Instead of being criticised as baby selling/buying it is argued that the surrogacy process is a ‘socially useful enterprise.’ Given that the surrogate will incur expenses for travel, medical and perhaps loss of earnings she should be in a position to agree payments that will compensate for that.
Conclusion
There are arguments both in favour of removing reasonable expenses or retaining them. What is clear is there is a need to change the current law given that excessive payments have been authorised. Thus, the law needs to be changed to better promote certainty and avoid the criticism that it is ineffective in practice. Whether this will be by removing reasonable expenses or retaining them with modifications remains to be seen.
Sources
Claire Fenton-Glynn and Jens Scherpe (on behalf of Cambridge Family Law), ‘Surrogacy: Is the law governing surrogacy keeping pace with social change?’ (2017)
Amel Alghrani and Danielle Griffiths, ‘The regulation of surrogacy in the United Kingdom: the case for reform’ (2017) 29 Child and Family Law Quarterly 165
Law Commission, Building families through surrogacy: a new law (Law Com No 244, 2019)
J L Hill, ‘Exploitation’ (1993 – 1994) 79 Cornell Law Review 631
L M Purdy, ‘Surrogate Mothering: Exploitation or Empowerment?’ (1989) 3 Bioethics 18
Makhmood Ali is a current LLM/LPC Student with a keen interest in criminal and sports law. Outside of study, he enjoys playing and following sports especially football and boxing.
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