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University of Technology Sydney Law Research Series |
Last Updated: 10 April 2017
This is a pre-publication version of a chapter published in
Kirsty Horsey (ed) Revisiting the Regulation of Human Fertilisation and Embryology, Routledge, 2015, 200-216
New wine in old bottles and old wine in new bottles: The judicial response to international commercial surrogacy in the United Kingdom and Australia[*]
International commercial surrogacy is entered into for the purpose of family formation, so it ought to be simple and logical for family law to apply to these arrangements. However in both Australia and the United Kingdom the legal rules governing this area suggest otherwise. In place of simplicity and clarity of legal regulation there remains ongoing complexity and confusion. This observation is disappointing given that both jurisdictions have recently targeted legislative reform as a means of future proofing the law in this area of human reproduction. For example, in the United Kingdom the Human Fertilisation and Embryology Act 2008 (HFEA) was widely billed as an opportunity to ensure the law would remain ‘fit for purpose’ for the 21st century’ and in Australian state jurisdictions recent legislative reform has concentrated upon providing alternative legal pathways to parenthood for uncompensated surrogacy arrangements.
In both jurisdictions the law proceeds on the assumption that the most
important aspect of commercial surrogacy is the resulting child,
yet imposes no
universal rule upon these arrangements. Transnational commercial surrogacy
exposes gaping holes in the ability of
domestic family law to provide a
comfortable resolution to jurisdictional difference. Courts in both Australia
and the United Kingdom
have been faced with novel legal issues such as: children
being born stateless[1] and/or with
different jurisdictions recognising different legal
parents[2]; the death of a
commissioning parent and subsequent allocation of parental
responsibility[3]; and who may access
legal parentage.[4] The legal process
has proven to be both illogical and complex as surrogacy cases may take numerous
hearings ‘to pick a way
through the legal
maze’[5] raising global issues
of power and vulnerability[6] and
exposing tension between public policy and the best interests of the child born
from such arrangements.[7] It is
troubling that such significant legal issues remain given that international
commercial surrogacy arrangements are growing
in prominence and number (Millbank
2013; Crawshaw et al. 2013) and that the practice of commercial surrogacy has a
long history (Stuhmcke
2004).
Australia and the United Kingdom offer
interesting points of comparison on the interrelationship between family law,
public policy
and international commerce in surrogacy. In England and Wales the
activity of commercial surrogacy has itself never been a criminal
offence yet
the Surrogacy Arrangements Act 1985 imposes restrictions with the aim of
preventing the development of a commercial surrogacy industry. One such
restriction is the incorporation
of criminal offences within the Surrogacy
Arrangements Act 1985. For example, most recently the High
Court[8] determined that in drawing
up a surrogacy agreement for payment, solicitors had committed a criminal
offence under section 2 of
the Surrogacy Arrangements Act 1985, noting that such
agreements can lawfully be drawn up free of charge. In Australia, criminal
law
is applied to the act of commercial surrogacy itself in all state and territory
jurisdictions (with the exception of the Northern
Territory). Despite this
difference in public policy the judiciary in both jurisdictions approach the
determination of parentage
responsibility in transnational surrogacy with almost
identical goals and concerns. This chapter identifies and discusses this
thematic
similarity in the judicial response.
This comparative analysis suggests urgent review of the law pertaining to commercial surrogacy in both jurisdictions. Judicial decisions in both Australian and the United Kingdom prioritise the best interests and welfare of children born through such arrangements. Of conflicting, yet secondary, concern for the judiciary is public policy aimed at criminalising or at least not facilitating a commercial surrogacy industry. Without public policy approval of international commercial surrogacy, the historical status quo will remain, ensuring existing regulation remains at best a legal minefield, such as that which exists in the UK, and at worst a legal fallacy, such as that which operates in Australia.
II What is cross border commercial surrogacy and how is it regulated?
These two questions are intertwined. Commercial surrogacy is not always easy to identify. Often contrasted with the practice of altruistic surrogacy – commercial surrogacy is generally construed as a profit making exercise. However it can be difficult to distinguish between surrogacy which is altruistic and surrogacy which is commercial. This is particularly the case when the surrogate’s ‘expenses’ are able to be paid in an altruistic arrangement. While this distinction is irrelevant in countries where commercial and altruistic surrogacy are both ‘legal’ such as India and certain states in the United States, it is highly relevant in jurisdictions such as South Africa and Australia where commercial surrogacy is a criminal offence while altruistic surrogacy is allowed. It is also a critical distinction in jurisdictions where the practice is not criminal yet not facilitated such as the United Kingdom.
There are difficulties with the conceptualisation of commercial surrogacy. Firstly, surrogacy arrangements can be commercialised to varying degrees. At one end of the spectrum are informal arrangements in which no benefit is provided to the surrogate mother. At the other end are fully commercial contracts brokered by a professional surrogacy agency. There are also intermediate possibilities, such as relatively informal arrangements that nonetheless involve monetary or other benefits being provided to the surrogate mother. These arrangements may include unregulated ways of accessing surrogates such as using international surrogates or family friends. As such they may involve varying degrees of lawfulness. For example in Australia such informal arrangements have been expedited by the birth mother using the intended mother’s Medicare card for the purposes of hospital admission and giving birth under the other woman’s name. Secondly, the very creation of categories between the two types of surrogacy is in and of itself questionable. For example Van Zyl and Walker (2013) reject the categorization of altruistic surrogacy as gift relationship and contract surrogacy as non-gift noting that contract motherhood should not be organized according to the norms of the gift relationship. Attention has also been drawn to an absence of convincing ethical arguments to distinguish the binary style of surrogacy regulation imposed by altruistic versus commercial surrogacy (Stuhmcke 1996).
The internationalisation of commercial surrogacy brings additional economic, social and political challenges. The operation of the global commercialised market in low-resource countries such as Thailand (Whittaker, 2011; Hibino & Shimazono, 2013) and India (Pande A, 2009; Unnithan 2013) causes a range of benefits and negative impacts. In low-income countries benefits include the generation of business. Dangers include whether this will create a two-tiered health system for the western elite and the poorly resourced public (Whittaker, 2011). In high-income countries such as the United Kingdom a national benefit of cross border commercial surrogacy is to allow citizens to go off-shore to pursue surrogacy while not allowing the practice on moral grounds in the home jurisdiction (Storrow, 2010) while disadvantages include inaccurate legal advice to those who pursue surrogacy overseas, as well as the inadequacy of domestic law to handle aspects of international commercial surrogacy (Storrow, 2013).[9]
The numbers of individuals and couples pursuing international commercial surrogacy is growing. In the United Kingdom a 2014 roundtable convened by the Project Group on Assisted Reproduction (PROGAR) and funded by the Society for Reproductive and Infant Psychology (SRIP) was advised that that more than 1,000 babies are brought to the UK each year, but it could not be identified with authority that these were all surrogacy babies as there is no special procedures for passport applications following a surrogacy arrangement. While many of this number may well relate to babies following a surrogacy arrangement, there is no way to be sure. In the UK each year around 100 parental orders are sought. It has been suggested that a majority of commissioning parents may not subsequently apply for a Parental Order for transfer of legal parentage (Blyth, 2014). The General Register Office of England and Wales notes that in approximately 26% of the 939 parental orders made between January and October of 2011 (i.e. 133 births) the births took place overseas, contrasting with 13% in 2010, 4% in 2009, 2% in 2008 and 0% in 1995, the first year of registration (Crawshaw, et al, 2012). The increasing numbers of international commercial surrogate births is recognised as a pressing regulatory challenge in the UK (Horsey & Sheldon, 2012; Gamble, 2013).
Similar issues exist in Australia. Complicated by differing federal and state regulation, continued eligibility restrictions to altruistic surrogacy (Smith, 2013), as well as the inability of many prospective parents to engage previously unknown surrogates (as a result of domestic bans on advertising and payment) and egg donors has led to Australians increasingly travelling for international commercial surrogacy to India, Thailand and the US, among others (Department of Immigration, 2013). While exact numbers are unknown an increasing number of Australians engage in cross-border commercial surrogacy. From the period 2007-2010, 69 distinct families had been involved in surrogacy. These 69 families included travel to ‘evade restrictive local laws or to access donor gametes unavailable in home jurisdictions occurred in 44 cases’ (Milbank, 2011). Travel to another Australian state was reported in nine arrangements while international travel occurring in 35 cases. In 2010-11, there were 16 recorded surrogacy births within Australia as a result of regulated assisted reproductive treatment, while 394 babies were born in India to Australian citizens in the same year, the majority of them almost certainly via commercial surrogacy (Millbank, 2014).
This increased utilisation of international surrogacy is occurring in both jurisdictions despite public policy. Using the lens of legislative regulation, the next part of this chapter examines the current state of public policy with respect to international commercial surrogacy in both jurisdictions. Judicial decision-making with respect to international commercial surrogacy is further addressed in Part Four below.
III Public Policy: Legislative disapproval of cross border commercial
surrogacy
In the United Kingdom and Australia public policy in this
area was borne from uncertainty. In both jurisdictions the laws concerning
surrogacy continue to evolve in a haphazard fashion (Jackson, 2014; Millbank
2011).
This lack of thoughtful review has been questioned by an original architect of UK surrogacy public policy. Dame Warnock, the Chair of the influential 1984 Warnock Report observed in 2002 that ‘I now believe that it would be better if the process were officially regulated, and more openly discussed between doctors, prospective parents, surrogates, and, later, with the resulting children’ (Warnock, 2002, 92) and further that
..the hasty legislation was rushed through in the UK at the end of a Parliamentary session in 1989..on a wave of revulsion against anything so vulgar and exploitative as the American commercial companies who were hovering on the shores of Britain. The general sentiment was ‘not in our backyard’. If people wanted to enter into surrogacy contracts, let them go across the Atlantic to do it. I do not remember any very serious discussion of whether or not surrogacy was so intrinsically so immoral, or its consequences so socially disastrous, that legislation against it must be enacted...I increasingly believe that one social ill we need to be aware of is that of excessive governmental regulation. If surrogacy were allowed in the UK, on the American model, though some people might be offended, I doubt if we would be harmed...I suspect that the legislation hastened through at the time of the Committee of Inquiry into Human Fertilisation and Embryology was mistaken. (Warnock, 92-93)
In Australia, regulation of surrogacy was heavily influenced by the Warnock Report. The first Commonwealth enquiry into surrogacy resulted in the 1985 Family Law Council recommendation of uniform Australian legislation which would reflect that ‘..as a matter of public policy, surrogacy arrangements are seen as contrary to the welfare and interests of the child’ (Family Law Council, 1985). The report went on to make a distinction between altruistic and commercial surrogacy recommending the prohibition of commercial surrogacy while being less explicit on the practice of altruistic surrogacy. Unsurprisingly, Victoria, the first Australian state to introduce legislation in 1986 by way of the Infertility (Medical Procedures) Act 1984 which dealt specifically with surrogate motherhood prohibited commercial and altruistic surrogacy. This legislation was based upon findings by the Victorian Waller Committee which condemned commercial surrogacy arrangements as being 'the buying and selling of a baby' (Victorian Committee, 1984). The legislation criminalised commercial surrogacy, a legal position subsequently adoption by all other Australian jurisdictions. This prohibition has never been questioned by policy makers and, similarly to the UK, has not been opened to public debate (Stuhmcke 2011).
(i) Australian public policy: Legislative regulation of cross border commercial surrogacy
In most Australian jurisdictions while altruistic surrogacy is variously allowed but difficult to engage in, commercial surrogacy is a criminal offence. The absence of regulation of commercial surrogacy at a federal level means that surrogacy legislation remains state and territory specific. Commercial surrogacy is prohibited – and a criminal act – in all jurisdictions which have legislation.[10]
In contrast to the UK approach outlined by Dame Warnock, as reflected in the
quotation in the immediately preceding section, where
the policy was one of
‘not in our backyard’... and ‘If people wanted to enter into
surrogacy contracts, let them
go across the Atlantic to do it’, the
offence of commercial surrogacy is extraterritorial in three Australian
jurisdictions.
In New South Wales (NSW), the Australian Capital Territory (ACT)
and Queensland (Qld) it is an offence for residents to enter into
overseas
commercial surrogacy arrangements with a punishment of a fine or imprisonment
($110 000 AUD or up to three years imprisonment).
These prohibitions also apply
to residents of NSW, ACT and Qld seeking inter-state arrangements. The ACT and
Qld introduced the
provisions in 1994 and 2010 respectively and NSW did so in
2011. It is somewhat extraordinary that three Australian state jurisdictions
have this prohibition given that it was only recently, in 2010, that Turkey
became the first country to introduce such prohibition
at a national level
– introducing laws to regulate against its citizens seeking third-party
reproductive assistance through
donor gametes or surrogacy (Gurtin, 2011).
In all three Australian jurisdictions the extraterritorial criminal
provisions which apply to commercial surrogacy have never been
enforced. This
remains the case despite the existence of high profile legal and media cases
where residents of the ACT, Qld and NSW
have used international commercial
surrogacy. It is also the case despite courts in Queensland and NSW granting
parentage and parental
responsibility orders for such arrangements. The only
prosecutions for surrogacy in Australia have been for an act committed within
a
single jurisdiction. There have been prosecutions of several women and a doctor
under the now repealed Surrogate Parenthood Act 1988 (Qld) which
criminalised both altruistic and commercial surrogacy, these individuals
received lenient treatment from the courts
(Emmerson, 1996). The absence of
effective prosecutions indicate that the role of criminal law in this area is
both unnecessary and
pointless.
Despite the legislative criminalisation
of the practice, applications come to the Family Court for parenting orders
under section 64C of the Family Law Act 1975 (Cth) (FLA). Such orders
apply in circumstances where the law fails to recognise a person as a legal
parent. Allowing the Family
Court to make a parenting order in favour of such a
person, the basis for making such an order is that the applicant is a
‘person
concerned with the care, welfare or development of the
child’ (see s 65C(c) of the FLA). These orders are pursued through the
courts by Australian citizens returning to Australia with a foreign born child
with whom they usually have a genetic link and a primary caregiving role, but no
legally recognised relationship. While the parameters of parenting
orders are extensive, they are not as far-reaching as legal parentage as they
terminate when the
child turns 18 and do not grant parental status as such.
Parenting orders do give the intended parents responsibility for making
decisions concerning the welfare of the child such as the name a child will be
called, the school a child will attend and important
medical decisions. These
orders also include where and with whom a child will live and with whom a child
will spend time (see s 64B of the FLA).
However parenting orders do not
solve the complex legal issues which arise with respect to international
commercial surrogacy. Generally
Australian family law will not recognise legal
parentage granted in other jurisdictions. This means that in the absence of
Australian
parentage, children brought back to Australia by their genetic
Australian parents and primary caregivers may be both stateless and
parentless
(such as where the child was born in India). It is true, as Millbank observes
that Australian decision makers have had
to be creative to ‘...try to
‘find’ a parent in order to avoid outcomes such as leaving children
stateless orphans
abroad’ and in doing so have given recognition
‘..through ad hoc liberalisation of interpretations of
‘parent’
and ‘child’ in particular pieces of
legislation, which has left parents in a state of ambiguous, labyrinthine and
‘limping’
legal parentage’ (Millbank, 2013, p 137).
(ii) United Kingdom public policy: Legislative regulation of international commercial surrogacy
As noted previously surrogacy
legislation in the UK originated in the findings of the 1984 Warnock Report.
Although divided, the
Committee's view was that the operation of agencies to
promote commercial and altruistic surrogacy should be prevented. The
legislation
which was enacted and is still in force, the Surrogacy Agreements
Act 1985, aims primarily to prohibit commercial surrogacy through criminal
penalties (which do not apply to the parties to the
agreement)[11].
Today in the United Kingdom to obtain parental responsibility for a child
born through international commercial surrogacy the commissioning
parents must
apply for a parental order under section 54(1) of HFEA. Section 54 prescribes
that the court must consider the age
and genetic relationship of the
commissioning parents to the child, the timing of the application and location
of the applicants.
Payments made to the surrogate mother may be authorized by
the courts. However courts in the UK must, under section 54(8) HFEA be
satisfied that the surrogacy arrangement was altruistic and if so
satisfied have discretion to authorise payments retroactively.
Interestingly United Kingdom courts are retroactively approving
commercial
agreements allowing and approving the applications of commissioning parents for
a parental order where the surrogacy arrangement
was commercial. Here then is an
apparent divergence between the law and public policy and the practice of
decision-makers. However,
as is discussed further in the following section this
response by the courts is perhaps both to be expected and is illustrative of
the
misapplication of current law to international commercial surrogacy.
Importantly, the judicial retroactive approval of commercial surrogacy has
been aided by the Human Fertilisation and Embryology (Parental Orders) Regulations
2010 which inserted section 1 of the Adoption and Children Act 2002 into section
54 of the HFEA 2008 rendering the welfare of the child the paramount
consideration of the court when considering an application
for a parental order.
The significance of this amendment is captured by Hedley J in Re L (a
minor)[12] (at [10]):
The effect of that must be to weight the balance between public policy
considerations and welfare (as considered in Re X and Y) decisively
in favour of
welfare. It must follow that it will only be in the clearest case of the abuse
of public policy that the court will
be able to withhold an order if otherwise
welfare considerations supports its making.
This approach has been endorsed by subsequent international commercial
surrogacy decisions.[13] However the
judiciary has been clear in these decisions that a child born through
international commercial surrogacy will be granted
a parental order. That said
in all reported cases where s.54(8) of the HFEA has been considered the court
has retroactively approved
payments beyond reasonable
expenses.[14]
IV The Courts and Public Policy: Thematic similarity in jurisdictional
response
(i) New wine in old bottles: Prioritising the welfare of the child and deprioritising public policy
Family Courts in both jurisdictions have, rightly and without exception, elevated the interests of the child over public policy. The judicial response to disputes in international commercial surrogacy matters is not to ignore, but rather to deprioritise public policy. This approach embodies conceptualising international commercial surrogacy as being a traditional issue about a child’s welfare. The family courts deprioritise public policy by minimising, where possible the impact of criminal law (in Australia ) and the commercial nature of the agreement (in the UK). For example, in a 2012 Australian family law decision Ryan J granted the applicants a certificate under s128 of the Evidence Act 1995 (Cth) to enable the parties in the international commercial surrogacy case[15] to speak freely. This certificate ensured that evidence could not be used in criminal courts. In that case Justice Ryan observed the difficulty that the court faces when balancing public policy with the welfare of the child:
‘...[o]f course imprisonment of the applicants would see two much loved children inexplicably separated from the only people they have known as parents. The potential for long term psychological and emotional harm to the children were such an event to come to pass is obvious’ (at [3]).
Prioritisation of the best interests of the child over the enforcement of a criminal penalty in cross border surrogacy was predicted in Australia some 20 years ago. In the passing of the Surrogate Parenthood Act 1988 (Qld) it was observed that:
‘If a Queensland resident went to Victoria or South Australia to legally undergo a [surrogacy] and then returned to Queensland, in principle that person could be thrown into gaol for three years. The legislation is silent about what would happen to the child who was born as a result of that act, an act which was perfectly legal in the place where it was carried out.’ (Queensland Parliamentary Debates: Mr Wells, 1988, 683).
The best interest and welfare of the child, has long and consistent treatment by the family courts. Here there is no surprise in the inevitability of family courts completing international commercial surrogacy arrangement through granting parental responsibility to the commissioning parents. This is evidenced in the United Kingdom where it has been noted that such orders ‘...will provide lifelong security for the children’s relationship with the applicants, which is what the welfare of each child overwhelmingly demands’ (Re W [2013] EWHC 3570 at [30]). As Mr Justice Hedley in Re: X and Y [2008] EWHC 3030 (at [24]) states:
I feel bound to observe that I find this process of authorisation most uncomfortable. What the court is required to do is to balance two competing and potentially irreconcilably conflicting concepts. Parliament is clearly entitled to legislate against commercial surrogacy and is clearly entitled to expect that the courts should implement that policy consideration in its decisions. Yet it is also recognised that as the full rigour of that policy consideration will bear on one wholly unequipped to comprehend it let alone deal with its consequences (i.e. the child concerned) that rigour must be mitigated by the application of a consideration of that child's welfare. That approach is both humane and intellectually coherent. The difficulty is that it is almost impossible to imagine a set of circumstances in which by the time the case comes to court, the welfare of any child (particularly a foreign child) would not be gravely compromised (at the very least) by a refusal to make an order.
As Justice Hedley observes the family court process is fait accompli. In the absence of such judicial completion of the international surrogacy arrangement the child would, in some circumstances (such as birth in India), be both stateless and parentless; in others the child would have the citizenship of the birth country (USA, Thailand) but no parents there (California, British Columbia); or only a mother there (Thailand) (Keyes, 2011; Storrow, 2012).
However there is consistent tension in this area between the public policy of disapproval of commercial surrogacy and family law. As is evident in the above statement by Justice Hedley in Re: X and Y, courts explicitly acknowledge the conflict between public policy and family law. This is particularly so in Australia and clearest in two 2011 decisions of the Family Court of Australia. In both decisions Justice Watts referred the international commercial surrogacy cases (where the children had been born to surrogate mothers in Thailand) to the Director of Public Prosecutions (DPP). The Court, after making orders that it was in the best interest for the children to live with the commissioning parent applicants, made an additional order that a copy of the judgment be provided to the DPP for consideration of whether a prosecution should be instituted against the applicants under Section 3 of the Surrogate Parenthood Act 1988 (Qld).[16] There have been no resulting prosecutions.
Similarly, UK courts recognise this supervisory role of regulatory authorities in surrogacy. For example in Re G[17] Justice McFarlane authorised a copy of the judgment to be sent to the Minister of State for Children, Young People and families as ‘..it is questionable whether the role of facilitating surrogacy arrangements should be left to groups of well-meaning amateurs’ (at [29]) .[18] Also, Mrs Justice Thies DBE, in J v G[19] when dealing with a United States surrogacy case referred the British Surrogacy Centre of California (‘BSC’) which operates in the UK from an address in Essex to the Department of Health stating:
During this period the applicants decided to cease using the BSC. It has not been necessary, in the circumstances of this case, to consider the role played by BSC. However, I have directed the applicant’s solicitors to send a copy of this judgment to the Department of Health, which has regulatory responsibility in this area. (at [6])
The role of the courts in this area has not been to police the enforcement of criminal laws rather it has been one of effectively completing the commercial arrangements. In placing the ‘new wine’ of international commercial surrogacy into the ‘old bottle’ of determining disputes with reference to the child’s welfare the issue become one as to whether the continued application of criminal law to this area of family formation is unnecessary and pointless.
(ii) Old wine in new bottles: Deconstructing and reconstructing altruistic commerce
The application of prohibitive public policy to international commercial surrogacy has also resulted in judicial creativity. New constructions or recognitions of the inter-relationship between altruism and commerce have been applied to allow the courts to place children with commissioning parents. One example of this is the development and application of what is here termed “altruistic commerce”. This concept allows courts to resolve the legislative tension in the UK between profit and morality and in the Australian context it facilitates the family courts locating the issue within the realm of family rather than criminal law.
Most simply UK courts authorise commercial payments against a background of altruism. For example in the first Russian surrogacy case before the UK High Court AB and DE[20] Mrs Justice Theis DBE noted the total sum of 50 000 euros paid to an agency and that ‘..on the figures that are available about half of the global fee went to the agency’. At [17] her Honour noted that the amount paid to the surrogate ‘equates to about 1-2 years average wage’ at [19] but that ‘there is no evidence to suggest the will of the First Respondent has been overborne by the offer of payment’ at [20]. Justice Theis notes that ‘All the evidence points to the sum being within the range of similar arrangements made in Russia and all the information regarding the First Respondent’s actions support the conclusion that she entered into this arrangement of her own free will’ at [21].
This ‘new’ framework of altruistic commerce creates two main contradictions, and even contortions, in legal reasoning. The first of these is that in paying reasonable expenses there must be no ‘moral taint’ upon the commissioning parents.[21] This is a judicial imperative in the UK due to section 54(8) of the HFEA. The application of this notion gives rise to a simultaneous narrative of vulnerability and strength in international commercial surrogacy cases. In the UK many judicial decisions characterise the commissioning parents as undergoing a harrowing journey, described variously as: ‘...a trek through a thorn forest’[22]; ‘a long and arduous [journey], both emotionally and financially’[23], often noting the number and duration of IVF treatments, ‘Over the last 16 years they have had a long and arduous journey to become parents, involving 15 IVF cycles both here, in Italy and then Russia.’[24] The second point of incongruity is that altruistic surrogacy assists the surrogacy industry – the opposite result of what public policy in this area has stated to be its aim. In the UK the legislative requirement in section 54 of the HFEA that expenses paid to a surrogate may contravene public policy if they are ‘disproportionate to expenses reasonable incurred’ results in disadvantage for the surrogate and profit for the industry – the very thing that the Warnock Report originally disapproved of. For example in Re P-M[25] the court observed that the surrogate was paid $17 700 as altruistic payments and a payment of $48 000 made to the agency – with a profit amount of $21 500 identified by the court. Justice Thies DBE held that such payments must be included in the consideration of the court but that the legality of that arrangement in the jurisdiction where the surrogacy takes place (here the US) together with the reality of ‘..a legal commercial framework which is driven by supply and demand’ (at [19]) were relevant, holding that the sum paid to the clinic ‘was not so disproportionate to expenses’ (at [24]).
The lack of legislative guidance as to what constitutes commercial surrogacy contributes to the courts imputing layers of altruism into the commerciality of the arrangement. This area was one of missed opportunity in the HFEA 2008 reforms in the United Kingdom and in many state jurisdictions in Australia which have recently introduced new legislation such as New South Wales.
A more logical approach is to explicitly recognise that a surrogate mother
can, does and should profit from her surrogacy. Surrogate
mothers have profited
in many of the cases decided by the courts in the UK and Australia. Legal
recognition of this reality involves
respecting a woman’s reproductive
autonomy which ‘demands that surrogacy laws be reconsidered and radically
altered’
(Nelson, 2013). Framing the payment to the surrogate mother
positively will eradicate the necessity of the judiciary to resort to
artificial
constructs and tortured reasoning. The role of the courts thus far is also
rendered morally difficult as international
concepts of ‘reasonable
expenses’ and of ‘profit’ fluctuate widely. In Australia the
average cost of altruistic
surrogacy has been estimated at $45, 000. The average
cost of surrogacy in India is $77,000 while an arrangement in the US cost on
average about $176,000. (Walsh Halligan Douglas, 2012). In the UK while section
2(1) of the Surrogacy Arrangements Act 1985 prohibits the negotiation of
a surrogacy agreement ‘on a commercial basis’ and makes the
facilitation of a surrogacy
arrangement through advertising a criminal offence
ambiguity remains as to what constitutes commercial surrogacy. The
highest payment (so far) to a surrogate mother retroactively approved by the UK
court is $56,750 (American dollars), plus
expenses.[26] Recognition of profit
as one possible goal of commercial surrogacy will also rid the courts in both
the UK and Australia of the legal
conundrum of defining acceptable expenses.
For example in Australia the distinction between commercial and altruistic
surrogacy
is confusing as three states expressly recognises the intended
parents’ obligation to reimburse the birth mother for reasonable
expenses
associated with pregnancy and
birth.[27]
Explicit public
policy approval of commercial surrogacy will also remove existing tensions
created around inequities in global reproduction.
Such public policy approval
would involve an organised state run system – whether through legislation
or state based agencies.
Such a regulated version of commercial surrogacy may
reduce the dangers of international surrogacy and result in less pursuit of
commercial surrogacy in countries which are less well developed than the UK or
Australia. This will also assist the judiciary. Courts
have been required to
take new steps in relation to international commercial surrogacy with which the
judiciary has expressed discomfort.
Explicit public approval of their role
would assist clearer judicial reasoning. For example, the rise of international
commercial
surrogacy in jurisdictions such as India and Thailand raises complex
cross jurisdictional issues of motivation and exploitation (Panitch,
2013).
International surrogacy cases are uncontested with an imbalance in wealth and
country of residence advantage. As stated
by Cronin
J:[28]
All of the evidence points to the fact that this child is going to be brought up in a very happy and secure environment with many of the benefits that I suspect he would not have had had he been born and raised in India. The unusual feature of this particular application is that it has been served on the respondent who I suspect, from looking at the signature, has very little knowledge of what this is really all about. But having regard to the fact that my concern is that she has at least been made aware of the application justifies proceeding in her absence. The expression “gestational parent” or “gestational mother” seems to me to really belie the fact that she is the mother of this child in some biological senses, but she has not appeared and nothing has been filed on her behalf.
Courts in both jurisdictions acknowledge that in placing the child in the legal care of the commissioning parents consent of the surrogate mother must sometimes be assumed. In Australia Justice Ryan states:[29]
The contract provided that the total compensation Rs 2,25,000 (Rupees two Lakhs twenty five thousand) for a vaginal birth or Rs 2,60,000 (Rupees two Lakhs sixty thousand) if the mother had a caesarean delivery. It is not necessary to summarise the entire agreement but it should not pass without comment that the provisions which limit the birth mother’s ability to manage her health during the pregnancy and make decisions about delivery of her babies, are troubling. It is also troubling that this 29 page document is written in English. It is signed by the applicant and, because she is illiterate in English and Hindi, the mother’s attestation is her thumb print. There is nothing in the document which suggests that before the birth mother signed it that it was read and translated to her.
In the UK placement of children with commissioning parents has taken place in the absence of consent of the surrogate mother. Consent was dispensed with in Re D and L (children) (surrogacy parental order[30]) when the Indian surrogate mother gave a false address and could not be located.
While change in public policy to allow the practice of international
surrogacy may not redress such global inequities – it is
clear thus far
that prohibition is unsuccessful. It is also clear that people will continue to
seek international surrogates while
their domestic laws are in disarray. As
discussed above, despite the application of criminal law in Australia and a
public policy
disapproving of commercial surrogacy in the UK, the courts in both
jurisdictions complete these arrangements through placing the
child in the legal
care of the commissioning parents. The Australian experience shows that
‘...prohibition of surrogacy does
not work... Such regulation is difficult
in a globalised world where travel from continent to continent is no longer
difficult. Added
to this, in some parts of the western world, there is wealth to
the extent that funding of surrogacy (whether commercial or altruistic)
is
easily achieved’.[31]
Similarly, in the UK, Justice Hedley observes ‘... if it is desired to
control commercial surrogacy arrangements, those controls
need to operate before
the court process is initiated i.e. at the border or even
before’.[32]
Conclusion
International commercial surrogacy is a problem
garnering international attention (Hague conference, 2012). It is a practice
which
both intensifies ‘old’ surrogacy debates and raises new
questions. The interaction between public policy and family
law in this area
has resulted in the judiciary either attempting to constrain the new elements of
the practice within traditional
doctrine such as the welfare of the child test
or else incorporating the public policy requirements to develop
‘new’
legal concepts such as altruistic commerce. It may be that
either or both these approaches are acceptable to society. However despite
the
existence of prohibitive public policy there have been few attempts to gauge
public opinion within either the UK, including as
recently as the 2008 review of
HFEA (Horsey, 2013) and Australia (Poote & OBA van den Akker 2008) yet the
practice is judicially
acknowledged to be an issue which merits ‘... the
widest public debate’.[33]
While international commercial surrogacy may yet have a long road to trek before
it is legislatively sanctioned what is clear is
that the current approach of
disapproval and prohibition does not work. Individuals continue to turn to
commercial surrogacy in the
UK and Australia despite the lack of support from
their own state and medical structures – leaving the courts to reconcile
legal, moral and ethical tensions and in doing so, creating new families.
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[*] Thanks to Jenni Millbank,
Kirsten Horsey and the anonymous reviewers for their thoughtful comments. This
research was supported
by Discovery Project Grant 0986213 from the Australian
Research Council and funding from UTS:
Law.
[1] X & Y (Foreign
Surrogacy [2008] EWHC 3030.
[2]
See AB and DE [2013] EWHC 2413; Re K (Minors) [2010] EWHC
1180.
[3] A and A and P and P
and B [2011] EWHC 1738.
[4]
O’Connor & Kasemsarn [2010] FamCA
987.
[5] Re G [2007] EWHC
2814.
[6] Mason & Mason and
Anor [2013] Fam CA 424.
[7]
Re: X and Y [2008] EWHC
3030.
[8] JP v LP &
Others [2014] EWHC 595
(Fam)
[9] See Re G [2007]
EWHC 2814; Re X and Y (Foreign Surrogacy) [2008] EWHC 3030
(Fam).
[10] Surrogacy Act 2010
(Qld), s 56; Surrogacy Act 2010 (NSW), s 8; Parentage Act 2004
(ACT), s 41; Assisted Reproductive Treatment Act 2008 (Vic), s 44;
Surrogacy Contracts Act 1993 (Tas), s 4(4); Family Relationships Act
1975 (SA), s 10H; Surrogacy Act 2008 (WA), s 8.
[11] The Warnock Report provides
the following reason for this selective application of the criminal law at
[8.19] “We do not envisage
that this legislation would render private
persons entering into surrogacy arrangements liable to criminal prosecution, as
we are
anxious to avoid children being born to mothers subject to the taint of
criminality”.
[12]
[2010] EWHC 3146
(Fam)
[13] See e.g. Re X
and Y (children) [2011] EWHC 3147 (Fam); G v G [2012] All ER
(D) 138; Re D and
L (Children)(Surrogacy Parental Order) [2012] EWHC 2631 (Fam); Re A& B (Parental
Order Domicile) [2013] EWHC 426 (Fam); Re P-M
[2013] EWHC 2328 (Fam); Re C (A Child)
[2013] EWHC 2413 (Fam); Re C (A Child)
[2013] EWHC 2408 (Fam); Re W [2013] EWHC
3570 (Fam) J v G [2013]
EWHC1432
[14] Payments of up to
$56,750 (US) have bee approved see: J v G [2013] EWHC 1432
(Fam).
[15] Ellison and anor
& Karnchanit [2012] FamCA
602
[16] See Dudley & Anor
v Chedi [2011] at [32] and Findlay & Anor v Punyawong [2011] at
[32]
[17] [2007] EWHC
2814
[18] This reference was to
COTS (Childlessness Overcome Through Surrogacy) was founded in the United
Kingdom in 1988 with the aim of providing
advice help and support to surrogate
and intended parents see <http://www.surrogacy.org.uk/About_COTS.htm>.
[19]
[2013] EWHC1432
[20] [2013] EWHC
2413
[21] Re W [2013] EWHC
3570 per Mrs Justice Thies DBE at
[27]
[22] Re: X and Y
[2008] EWHC 3030 per Mr Justice Hedley at
[2]
[23] J v G [2013]
EWHC1432 per Mrs Justice Thies DBE at
[22]
[24] AB and DE [2013]
EWHC 2413 per Mrs Justice Theis at
[24]
[25] [2013] EWHC 2328 (at
[16-19])
[26] See J v G [2013]
EWHC 1432)
[27] Surrogacy Act
2010 (NSW) s 6(2); Surrogacy Act 2010 (Qld) s 15(2); Surrogacy Act
2008 (WA) s 7(3)
[28]
Edmore v Bala [2011] FamCA 731 Cronin J
[2]
[29] in Mason & Mason
and Anor [2013] Fam at
[3]
[30] [2012] EWHC
2631
[31] Lowe & Barry and
Anor [2011] FamCA 625 per Justice Benjamin at
[5]
[32] Re L (a minor) [2010]
EWHC 3146 (Fam) at [10]
[33]
Re: X and Y [2008] EWHC 3030 per Mr Justice Hedley at [29]
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