Surrogacy: Caution against backyard arrangements

SURROGACY: CAUTION AGAINST BACKYARD ARRANGEMENTS

A very recent UK case[1] stands as a cautionary tale of the serious legal and practical difficulties which  can arise where couples enter into informal surrogacy arrangements, often in the absence of counselling or any specialist legal advice. Handed down on 5 March 2014, the Family Division of the High Court of the United Kingdom was faced with a difficult surrogacy situation.

The mother was unable to conceive following a hysterectomy after the birth of her first child to a previous relationship (‘the mother’). The mother and her current partner (‘the father’) entered into an informal surrogacy arrangement with a friend of the mother (‘the surrogate’). This involved a privately arranged artificial insemination of the surrogate with the father’s sperm at home, without prior medical, psychological or legal assistance. The surrogate was therefore the genetic parent of the resulting child.

Before the birth, the hospital treating the surrogate requested that the parties enter into a written surrogacy agreement, despite the fact that such an agreement is unenforceable, by or against the person making it: s 1A, Surrogacy Arrangements Act 1985(UK). The surrogate and the father were registered as the parents on the baby’s birth certificate. The mother and the father were handed over care of the child. Not long after, the mother and the husband’s relationship broke down. The mother applied for a parental order but, as it was outside the statutory period after the child’s birth, the application was dismissed. This left the surrogate as the ‘legal mother’ and the child was made ‘a ward of the Court’, which would normally mean that no significant decisions about the child’s life can now be taken without further Court involvement. The mother and the father negotiated a shared residence order. Parental responsibility was delegated to the mother and the husband jointly. The mother was prohibited from exercising any parental responsibility for the child without the leave of the court. The mother and the surrogate were said to have a strong relationship.

In Australia, surrogacy arrangements, particularly internationally, are becoming increasingly common. This case raises a number of concerns for Australians seeking surrogacy. It also provides warnings to professionals and others providing services to parties involved in surrogacy arrangements.

Professional Responsibilities

In Australia, commercial surrogacy is prohibited. However, what constitutes a ‘commercial’ arrangement varies from state to state.

This recent UK case demonstrates the complexities for families, as well as medical practitioners and lawyers, in seeking to ensure that they comply with relevant legislation. The meaning of a ‘commercial’ surrogacy arrangement in the context of services rendered for professional fees is yet to be interpreted by Australian Courts. In the interim, professionals should navigate this area with extreme caution given this recent UK case.

Clear legal guidelines and a single, national legislation would go some way to ensuring the welfare of the child is met through the provision of clear important information and advice.

Nicolas Walker, Loretta Houlahan & Cameron Algie
17 March 2014