Surrogacy - Evolution and Direction - Case Study Example

Surrogacy: Evolution and Direction Introduction Surrogacy is defined by the Surrogacy Arrangements Act 1985 as ‘A woman who carries a child in pursuance of an arrangement: a) Made before she began to carry the child and b) Made with a view to any child carried in pursuance of it being handed over to, and the parental rights being exercises (so far as is practicable) by another person or persons.’1 Childlessness Overcome Through Surrogacy (C.O.T.S.) explains that there are two kinds of surrogacy. They are straight surrogacy and host surrogacy. Straight surrogacy occurs when a surrogate mother gives birth for an intended parent by using the sperm of the intended father and the surrogate mother parts with the child at birth. Host surrogacy occurs when the surrogate mother is carries the child who is genetically linked to both of the intended parents. This can only be accomplished through medical intervention and the surrogate mother is not related genetically to the child she carries.2 The legal rights and obligations in respect of surrogacy and the surrogate mother is regulated by both the Surrogacy Arrangements Act 1985 and the Human Fertilisation and Embryology Act 1990. These statutory provisions operate within strict definitions and applications and while prohibiting commercial advertisement of surrogacy as a profitable venture the law makes allowances for the reasonable expenses in respect of the surrogate from the intended parents. When account is taken of the legal role of the surrogate mother, the gravity of the sacrifice involved reasonable expenses does not respect just compensation for her troubles. This paper examines the role and obligations of the surrogate mother with a view to providing justification for the contention that the law ought to be expanded to allow for expenses over and above her actual expenses. Moreover the remit of the Human Fertilisation and Embryology Authority should be expended to regulate the practice of surrogacy. The Legal Role and Status of the Surrogate Mother The Human Fertilization and Embryology Act 1990 makes provision for, the Human Fertilization and Embryology Authority, which is a licensing authority that regulates research and treatment in human infertility and embryology.3 The act also makes it possible for the regularizing and controlling of surrogacy by bringing the medical aspects of surrogacy within its domain. 4 By virtue of Section 27 of the Human Fertilisation and Embryology Act 1990 the legal mother is at all times the surrogate mother and must assume legal responsibility for the child up until the child is lawfully adopted by the intender parents.5 The Human Fertilisation and Embryology Act 1990 was amended in 1994 to add Section 30 which permits the court to make a Parental Order which effectively confers legal status on the intended parents.6 Before making such an order that courts must be satisfied that:- a) The baby is genetically linked to at least one of the intended parents. b) The intended parents are at least 18 years old. c) The legal or intended parents have consented to the Parental Order and that consent is not valid unless it is given 6 weeks after the birth of the baby in question. d) The only payment made was in respect of expenses and no payment was proffered for the actual surrogacy arrangement. e) At least one of the intended parents is domiciled in the UK and the baby resides with the intended parents. f) The application for a Parental Order was made within six months of the birth of the child in question.7 Moreover, prior to the hearing an application for the making of a Parental Order a guardian ad litem is appointed for the purpose of reviewing the application and investigating the parties to the surrogacy and the application for the Parental Order. The court’s intention is always to ascertain what is in the best interests of the child.8 Any arrangements made by way of surrogacy parenting are not enforceable irrespective of any existing contract or consideration between the parties.9 The implications of this legal vacuum places the surrogate mother in a position where she can at anytime be held legally responsible for a child that she previously gave up in the event either party to the arrangements decide that they no longer want to abide by it. The Human Fertilisation and Embryology Act 1990 was a hasty response to the Baby Cottons Case litigated in 1984.10 In the Cotton Baby case Mrs. Kim Cotton agreed to conceive and carry a child by virtue of natural surrogacy in consideration of the sum of 6,500 pounds sterling. She made the arrangements via an agent in the United States.11 The Act by and large ensures that if the surrogate mother changes her mind she will be permitted to do so. Similarly, if the intended parents change their minds the surrogate mother will likewise be required to assume parental responsibility for the child.12 The Warnock Committee considered the idea of surrogacy as a means of womb leasing and recommended that all surrogacy arrangements be illegal.13 As noted previously, the Surrogacy Arrangements Act 1985 did not illegalize surrogacy arrangements but did make provision for these arrangements to lack the legally binding force of a contract. Section 1(9) of the 1985 Act does however appear to leave the legal status of these cases up to the courts for determination.14 Moreover the British Department of Health and Social Security released a White Paper in which they recommended that surrogacy arrangements be regarded as legally binding on the parties subscribing to them.15 The law leaves a wide range of unresolved issues which could easily be eradicated by the imposition of a legally binding contractual arrangement. By leaving open the possibility that a surrogate mother can reclaim a child that she parted with is in direct contravention of the Family Law common and statutory provisions which promote and advocate the best interest of the child. Certainly, a continuing stable environment which best serves the child’s welfare is compromised when at any given time the child can be uprooted from parents and a home that he or she has bonded with. Robert van Krieken argues that there has always been an underlying equitable principle applicable to the notion of the best interests of the child. That principle is stated by O’Connor J in Goldsmith v Sands (1907) 5 CLR 1648 who said that the court ‘will not permit that to be done with the child which a wise, affectionate, and careful parent would not do’.16 It can be argued that a wise parent would not give up her baby in the first place and therefore permitting such a parent to renege on their previous commitments and reclaim a child he or she for all intents and purposes gave away in the first place runs counter to the equitable principles governing the best interest of the child. While this principle has remained the corner stone of the legal framework within which the courts operate with respect to the child’s best interests, what has changed according to Kreiken ‘is the judicial and legislative construction of exactly how those best interests’ are to be understood, as well as how they are to be positioned within a nexus of other interests, of the father, the mother, ‘good government’, and of society more broadly.’17 The introduction of surrogacy laws have changed the dynamics of Family law institutions and if the best interest of the child is going to be preserved, the surrogacy arrangements will necessarily have to become legally binding contracts. The best way to accomplish this is to implement a measure of compensation which goes beyond actual expenses. The current state of allowable expenses were surveyed by C.O.T.S and is unsatisfactory when one considers that surrogacy involves what is essentially a twenty-for hour a day job for at least nine months with no time off. (See Apendix A) No doubt the implications evolving from damages for a breach of contract will function as a powerful deterrent in the event a surrogate mother or the adoptive parents wish to renege on the agreement some years after the child has been placed with the intended parents. By permitting these kinds of arrangements to exist without legal protection the child is left out of the equation. As J. Herring notes, ‘the strength of the welfare principle is that it focuses the court’s attention on the person whose voice may be the quietest both literally and metaphorically and who has the least control over whether the issue arrives before the court or in the way it does. The child may also be the person with whom the court is least able to empathise.’18 The manner in which the welfare principle operates within the area of surrogacy has already been visited by the courts. There is no attempt to treat these cases any differently than children who have been legally adopted or born into the family within which it remains. This is grossly unfair as it has the potential to introduce an ‘outside’ child into the family which is contrary to the family’s intention in the first place. Imagine a woman agreeing to have her husband impregnate another woman with express purpose of adopting that child as her own only to have the surrogate mother change her mind at the last minute. A legally binding contract would have prevented this as the surrogate mother would be under pressure to return the funds paid to her in exchange for the surrogacy. If her cost went beyond bare expenses she would not be so hasty to renege on an agreement which has the potential to impact on not only the child’s life but the life of the intended parents and their families. In Re P. (Minors) (Wardship Surrogacy) [1987] 2 F.L.R. 421 an Asian man made arrangements for a single white woman to conceive and carry a child fro both him and wife. The single white parent gave birth to twins and following the birth of the twins the surrogate mother refused to part with them. The father took the matter to court and children who were five months along by that time were made wards of the court. While accepting that the father’s home was superior intellectually and that there were valuable ties to the Asian culture, Arnold J determined that the children could not be uprooted from their mother with whom they had already bonded.19   In another scenario which is not a surrogacy matter but closely related raised the question of how the courts would treat a child when a surrogate mother gives up the child and changes her mind at a later date. In Re W. (A Minor) (Residence Order) [1992] 2 F.L.R. 332 following a brief relationship with the father a woman gave birth to a child and shortly after the birth gave the child to the father, signing a parental responsibility agreement. With a few days she wanted the baby back and petitioned the court by way of an ex parte summon for a residence order in respect of the child. Although her application was refused her subsequent appeal was allowed granting her custody of child until the appeals’ process concluded.20 The Braizer Committee reviewed the law in relation to surrogacy parenting in 1988 and advocated that while agencies might be permitted to operate within the UK they would not be permitted to do so for profit. 21 The general view was that by permitting these agencies to operate for profit it would only encourage women to pursue careers in surrogacy.22 However, the argument falls flat when one considers that persons typically seeking surrogacy or assisted reproduction services are likely to be very good parents since their desire to have a child is demonstrated by the efforts and expense they go to in order to have a child of their own. On the other hand, women or men who would give up their children for financial gain have no business acting as parents. Therefore the imposition of consideration by way of a binding contract will best serve the welfare principle by virtually ensuring that children of surrogate arrangements remain in the custody of the preferred parent. Ethical and Medical Issues While medical issues arising in the course of any pregnancy give rise to justification for the extending of compensation of the surrogate mother over and beyond actual expenses, ethical considerations likewise justify the expansion of the Human Fertilisation and Embryology Authority for the regulation of the surrogacy process. The Human Fertilisation and Embryology Authority, as noted previously is a creature of statute by virtue of Section 5 of the Human Fertilisation and Embryology Act 1990.23 The 1990 Act is designed to regulate treatment for which legal, social and ethical considerations can significantly impact upon the family life and structure.24 While the Act regulates and controls fertility treatment in respect of egg or sperm donations (gametes) or in virtro fertilization, storage and research it left out of considerations the ultimate destination of these gametes.25 It is important to note that Section 13(5) of the Human Fertilisation and Embryology Act 1990 makes provision as follows:- ‘A woman shall not be provided with treatment services unless account has been taken of the welfare of any child who may be born as a result of the treatment (including the need of that child for a father), and of any other child affected by the birth.’26 This is a very novel provision. However it means nothing more than a recommendation without the provision of defining guidelines and the creation of an ethic’s committee or some governing body capable of ensuring compliance with Section 13(5) of the 1990 Act. As Richard Gregory notes ‘technology cannot be uninvented. We now live in an age where sperm donation and in vitro fertilisation are methods available to people who cannot otherwise have children, and which more and more couples are making use of. Few would deny them the opportunity, for there is no greater joy in human existence than that of parenting a child.’27 This simplistic approach is fortified by Section 3.1 of the Human Fertilisation and Embryology Authority’s Code of Practice which provides the following guideline: ‘When considering the treatment of any woman, treatment centres must take into account the welfare of the child that may be born as a result of treatment. Treatment centres are expected to also consider the welfare of any children the woman may already have responsibility for and the effect that treatment could have on these children. Treatment centre staff are expected to be aware of the need to show both care and sensitivity in this decision making process. Consideration is expected to be taken regarding the wishes and needs of those seeking treatment and the needs of any children involved.’28 The remaining provisions of the Code of practice with respect to ensuring the welfare of the child and the regulation of the treatment process of the done are coached in similar terms. The staff is expected to perform certain duties rather than required to. For instance, what should have been an important and mandatory provision, Section 3.11 is presented as some gentle advisory tool in respect of ascertaining the child’s welfare by providing as follows: ‘Treatment centres are expected to: (i) Take reasonable steps to determine who will have parental responsibility for the child or children which may be born as a result of treatment and (ii) Take reasonable steps to determine the person or persons responsible for raising such child or children and (iii) Take particular care where the child is to be raised in another country and where the law may be different from that in this jurisdiction. In such cases patients are expected to have counselling on the implications for the potential child and all others who could be affected (particularly when using donated gametes) especially if the treatment requested is considered illegal in the country of origin.’29 Ethical considerations make it mandatory for the investigation of the motives of the mother or woman seeking in vitro fertilization or the family seeking surrogacy parenting. Section 20 of the Code of Practice only makes reference to the general enquiries expected to be made of the medical staff in the case of parents seeking surrogacy.30 It might simply be a matter of a professional woman not wishing to inconvenience her career by carrying a baby to full term seeking to take advantage of the facilities. Likewise, a surrogate mother might very well be incapable of making such a commitment, although the Code of Practice for the Human Fertilisation and Embryology Authority the only concern is some expectation that the gametes match the donee’s physical and other attributes.31 The Code of Practice falls short of the kind of regulatory process required for regulating the practice of surrogacy. Private surrogacy arrangements are undesirable since they cannot be monitored and regulated outside of the private arrangements. This leaves out of the equation, and independent third party for the purpose of determining whether or not the surrogate mother and/or the intended parents are suitable candidates for their respective roles. For instance, a surrogate mother might experience or be predisposed to high risk pregnancies and thereby putting herself and the unborn fetus at risk. Moreover, intended parents may be entirely unsuitable as parents for a number or reasons ranging from poor parenting skills to abusive parenting tendencies. It is unsafe and unsatisfactory to permit the unscrupulous practice of surrogacy to sidestep the doctrine of the welfare principle to this extent. A major ethical consideration was expressed in the Warnock report as follows:- ‘We also wish to discourage women from becoming professional surrogates. There is evidence that some women view surrogacy as a form of employment, i.e. as an alternative to working outside the home, and a growing number of surrogates are entering into more than one surrogacy arrangement. In addition to our concerns about the physical and psychological welfare of surrogates who enter into repeated surrogacy arrangements, we also have reservations about facilitating a situation whereby some relatively poor and less educated women are having babies for their wealthier and better educated counterparts.’32 In the state of modern day technology and economy this is a legitimate concern. It is not farfetched to assume that there are those among us who might function to turn surrogacy into a commercial practice and both surrogate women and intended parents are at risk of being exploited for financial concerns. However, the abolition or discouragement of surrogacy is not going to dispose of the practice.33 It will merely drive the practice underground and in the process defeat the goal of preventing abusive practices altogether. The practice of surrogacy would serve the best welfare of all parties involved, particularly the child’s if it is carried out in a manner aligned to the adoption practices and procedure.(See Appendix B) In the United States for instance, the surrogacy process closely mirrors the adoption process. While there is no uniform codification of the laws relating to surrogacy the law is operated on a State by State basis with a general tendency toward ‘informed consent.’ This requires the appointment of an ethic’s committee who by and large conducts intensive investigations of the parties to determine suitability. Moreover, psychological evaluations are required to be taken of the surrogate mother to ensure that she is providing ‘informed consent.’34 Conclusion Surrogacy makes it possible for parents to have children related to at least one of the parents when for the other parent is unable to reproduce. Obviously accomplishing this goal is not possible by virtue of adoption and surrogacy is the answer. Unfortunately the current legal boundaries seek are inclined to discourage surrogacy for fear of commercial exploitation. However, the regulatory restrictions discussed above have only served to complicate the process and has done nothing to deter the practice. The current state of the law is reminiscent of the previous restrictions on abortions which drove the practice underground and gave way to unethical and dangerous practices. The current technological advances and the opportunities for the safe and effective practice of surrogacy make any law attempting to discourage or limit surrogacy practices punitive and undesirable. Parents who want to pursue surrogacy will do so anyway and will resort to unethical methods if they cannot do so lawfully. It has therefore become a matter of public policy for the legislatures to implement laws which realistically reflect the needs and resources of the modern age. Appendix A35 Appendix B ‘The adoption process is two-fold; there is an adoption process for adopters and a process for the child who will be adopted. For people wishing to adopt a child the process involves: Initial enquiry with the family placement unit Initial Contact Form An information pack being sent out A registration of interest in becoming Adoptive parents An initial meeting with a Social Worker Preparation groups - completed application form Form F - assessment, references, medical and presentation to Adoption Panel, approval Search to identify a suitable child For the child - the process involves: A Child accommodated by Local Authority for a number of different reasons Care proceedings - commence Presentation to Adoption Panel Care proceedings completed Adopters identified The match: Match to Adoption Panel Planning Meeting Introductions Child is placed for adoption Support Visits by childs social worker and adopters social worker Periodic Reviews Application to Court Report to Court by social workers Adoption Hearing Adoption Order made ‘36 Bibliography Adoption Procedure.(June 2006) http://www.kirklees.gov.uk/community/health-care/foster-adopt/adoption-procedures.shtml#procedure Viewed April 3, 2007 Brazier Report: Surrogacy - Review for Health Ministers of current arrangements for payment and regulation (1998) Cm. 4068, i paras 4-9 Brindsen, Peter. “Education and Debate”. BMJ 2000;320:924-929 ( 1 April ) Charo, R. “Legislative Approaches to Surrogate Motherhood” (1966) 16 Law Med & Health Care 95 Code of Practice for the Human Fertilisation and Embryology Authority C.O.T.S. (n.d.) http://www.surrogacy.org.uk/pdf/factsheet.pdf Viewed April 3, 2007 C, Re (A Minor) (Wardship: Surrogacy) [1985] FLR 846 Department of Health and Social Security (UK) Legislation on Human Infertility Services and Embryo Research (Cm 46, HMSO, London, 1986). Freeman, M. “Does Surrogacy Have a Future after Brazier?” (1999) 7 Med L Rev Gregory, Richard.(1999) Not so Brave New World. http://www.fnf.org.uk/brave.htm Viewed April 3, 2007 Herring, Jonathan. The Welfare Principle and Parents Rights. The Journal of Social Welfare and Family Law. Volume 27, Number 2 / 01Jul2005 Human Fertilisation and Embryology Act 1990 Johnson, Mark. (1996) SOME OBSERVATIONS CONCERNING THE LAW OF SURROGACY http://www.surrogacy.com/legals/article/checklist/chklst1.html Viewed April Re P. (Minors) (Wardship Surrogacy) [1987] 2 F.L.R Report of the Committee of Enquiry into Human Fertilisation and Embryology (July 1984) http://www.bopcris.ac.uk/bopall/ref21165.html Viewed April 3, 2007 Re W. (A Minor) (Residence Order) [1992] 2 F.L.R. 332 Sly. K.M “Baby-sitting Considerations: A Surrogate Mother’s Right to Rent her Womb for a fee” (1983) Gonzago LR 359 Surrogacy Arrangements Act 1985 Van Krieken, Robert. The ‘Best Interests of the Child’ And Parental Separation: on the ‘Civilizing of Parents’ (2005) 68(1) MLR 25-48 Warnock, M. Report of the Inquiry into HumanFertilisation and Embryology Cmnd 9314 (The Warnock Report) HMSO: 1984 Journals Brindsen, Peter. “Education and Debate”. BMJ 2000;320:924-929 ( 1 April ) Charo, R. “Legislative Approaches to Surrogate Motherhood” (1966) 16 Law Med & Health Care 95 Freeman, M. “Does Surrogacy Have a Future after Brazier?” (1999) 7 Med L Rev Herring, Jonathan. The Welfare Principle and Parents Rights. The Journal of Social Welfare and Family Law. Volume 27, Number 2 / 01Jul2005 Sly. K.M “Baby-sitting Considerations: A Surrogate Mother’s Right to Rent her Womb for a fee” (1983) Gonzago LR 359 Van Krieken, Robert. The ‘Best Interests of the Child’ And Parental Separation: on the ‘Civilizing of Parents’ (2005) 68(1) MLR 25-48 Table of Cases C, Re (A Minor) (Wardship: Surrogacy) [1985] FLR 846 Re P. (Minors) (Wardship Surrogacy) [1987] 2 F.L.R Re W. (A Minor) (Residence Order) [1992] 2 F.L.R. 332 Table of Statutes Code of Practice for the Human Fertilisation and Embryology Authority Human Fertilisation and Embryology Act 1990 Surrogacy Arrangements Act 1985 Draft Surrogacy is defined by the Surrogacy Arrangements Act 1985 as ‘A woman who carries a child in pursuance of an arrangement: c) Made before she began to carry the child and d) Made with a view to any child carried in pursuance of it being handed over to, and the parental rights being exercises (so far as is practicable) by another person or persons.’37 Childlessness Overcome Through Surrogacy (C.O.T.S.) explains that there are two kinds of surrogacy. They are straight surrogacy and host surrogacy. Straight surrogacy occurs when a surrogate mother gives birth for an intended parent by using the sperm of the intended father and the surrogate mother parts with the child at birth. Host surrogacy occurs when the surrogate mother is carries the child who is genetically linked to both of the intended parents. This can only be accomplished through medical intervention and the surrogate mother is not related genetically to the child she carries.38(Elaborate more by introducing statutory provisions and then make a thesis statement) The Legal Role and Status of the Surrogate Mother The Human Fertilization and Embryology Act 1990 makes provision for, the Human Fertilization and Embryology Authority, which is a licensing authority that regulates research and treatment in human infertility and embryology.39 The act also makes it possible for the regularizing and controlling of surrogacy by bringing the medical aspects of surrogacy within its domain. 40 By virtue of Section 27 of the Human Fertilisation and Embryology Act 1990 the legal mother is at all times the surrogate mother and must assume legal responsibility for the child up until the child is lawfully adopted by the intender parents.41 The Human Fertilisation and Embryology Act 1990 was amended in 1994 to add Section 30 which permits the court to make a Parental Order which effectively confers legal status on the intended parents.42 Before making such an order that courts must be satisfied that:- g) The baby is genetically linked to at least one of the intended parents. h) The intended parents are at least 18 years old. i) The legal or intended parents have consented to the Parental Order and that consent is not valid unless it is given 6 weeks after the birth of the baby in question. j) The only payment made was in respect of expenses and no payment was proffered for the actual surrogacy arrangement. k) At least one of the intended parents is domiciled in the UK and the baby resides with the intended parents. l) The application for a Parental Order was made within six months of the birth of the child in question.43 (Go on to discuss the law and its implications. Introduce the Warnock Report) The law leaves a wide range of unresolved issues which could easily be eradicated by the imposition of a legally binding contractual arrangement. By leaving open the possibility that a surrogate mother can reclaim a child that she parted with is in direct contravention of the Family Law common and statutory provisions which promote and advocate the best interest of the child. Certainly, a continuing stable environment which best serves the child’s welfare is compromised when at any given time the child can be uprooted from parents and a home that he or she has bonded with. (Discussion about the welfare principle and how surrogacy laws appear to be weak in this area. Demonstrate how and why expenses can incorporate the welfare principle into the law of surrogacy.) The introduction of surrogacy laws have changed the dynamics of Family law institutions and if the best interest of the child is going to be preserved, the surrogacy arrangements will necessarily have to become legally binding contracts. The best way to accomplish this is to implement a measure of compensation which goes beyond actual expenses. The current state of allowable expenses were surveyed by C.O.T.S and is unsatisfactory when one considers that surrogacy involves what is essentially a twenty-for hour a day job for at least nine months with no time off. (See Apendix A) In Re P. (Minors) (Wardship Surrogacy) [1987] 2 F.L.R. 421 an Asian man made arrangements for a single white woman to conceive and carry a child fro both him and wife. The single white parent gave birth to twins and following the birth of the twins the surrogate mother refused to part with them. The father took the matter to court and children who were five months along by that time were made wards of the court. While accepting that the father’s home was superior intellectually and that there were valuable ties to the Asian culture, Arnold J determined that the children could not be uprooted from their mother with whom they had already bonded.44(More discussion about the welfare principle and the surrogacy actual expenses doctrine.)   In another scenario which is not a surrogacy matter but closely related raised the question of how the courts would treat a child when a surrogate mother gives up the child and changes her mind at a later date. In Re W. (A Minor) (Residence Order) [1992] 2 F.L.R. 332 following a brief relationship with the father a woman gave birth to a child and shortly after the birth gave the child to the father, signing a parental responsibility agreement. With a few days she wanted the baby back and petitioned the court by way of an ex parte summon for a residence order in respect of the child. Although her application was refused her subsequent appeal was allowed granting her custody of child until the appeals’ process concluded.45 (Discuss the Braizer Committee) Ethical and Medical Issues While medical issues arising in the course of any pregnancy give rise to justification for the extending of compensation of the surrogate mother over and beyond actual expenses, ethical considerations likewise justify the expansion of the Human Fertilisation and Embryology Authority for the regulation of the surrogacy process. The Human Fertilisation and Embryology Authority, as noted previously is a creature of statute by virtue of Section 5 of the Human Fertilisation and Embryology Act 1990.46 The 1990 Act is designed to regulate treatment for which legal, social and ethical considerations can significantly impact upon the family life and structure.47 While the Act regulates and controls fertility treatment in respect of egg or sperm donations (gametes) or in virtro fertilization, storage and research it left out of considerations the ultimate destination of these gametes.48 It is important to note that Section 13(5) of the Human Fertilisation and Embryology Act 1990 makes provision as follows:- ‘A woman shall not be provided with treatment services unless account has been taken of the welfare of any child who may be born as a result of the treatment (including the need of that child for a father), and of any other child affected by the birth.’49 This is a very novel provision. However it means nothing more than a recommendation without the provision of defining guidelines and the creation of an ethic’s committee or some governing body capable of ensuring compliance with Section 13(5) of the 1990 Act. As Richard Gregory notes ‘technology cannot be uninvented. We now live in an age where sperm donation and in vitro fertilisation are methods available to people who cannot otherwise have children, and which more and more couples are making use of. Few would deny them the opportunity, for there is no greater joy in human existence than that of parenting a child.’50 This simplistic approach is fortified by Section 3.1 of the Human Fertilisation and Embryology Authority’s Code of Practice which provides the following guideline: ‘When considering the treatment of any woman, treatment centres must take into account the welfare of the child that may be born as a result of treatment. Treatment centres are expected to also consider the welfare of any children the woman may already have responsibility for and the effect that treatment could have on these children. Treatment centre staff are expected to be aware of the need to show both care and sensitivity in this decision making process. Consideration is expected to be taken regarding the wishes and needs of those seeking treatment and the needs of any children involved.’51 (Offer detailed discussion of the Human Fertilisation and Embryology Authority’s Code of Practice and how it ignores important aspects of the welfare principle.) (Identify ethical considerations and medical issues by reference to a key observation made by the Warnock Report. Recommend changes that would assist the expansion of the Human Fertilisation and Embryology Authority with regulating surrogacy practice.) In the state of modern day technology and economy this is a legitimate concern. It is not farfetched to assume that there are those among us who might function to turn surrogacy into a commercial practice and both surrogate women and intended parents are at risk of being exploited for financial concerns. However, the abolition or discouragement of surrogacy is not going to dispose of the practice.52 It will merely drive the practice underground and in the process defeat the goal of preventing abusive practices altogether. The practice of surrogacy would serve the best welfare of all parties involved, particularly the child’s if it is carried out in a manner aligned to the adoption practices and procedure.(See Appendix B) In the United States for instance, the surrogacy process closely mirrors the adoption process. While there is no uniform codification of the laws relating to surrogacy the law is operated on a State by State basis with a general tendency toward ‘informed consent.’ This requires the appointment of an ethic’s committee who by and large conducts intensive investigations of the parties to determine suitability. Moreover, psychological evaluations are required to be taken of the surrogate mother to ensure that she is providing ‘informed consent.’53 Conclusion Surrogacy makes it possible for parents to have children related to at least one of the parents when for the other parent is unable to reproduce. Obviously accomplishing this goal is not possible by virtue of adoption and surrogacy is the answer. Unfortunately the current legal boundaries seek are inclined to discourage surrogacy for fear of commercial exploitation. However, the regulatory restrictions discussed above have only served to complicate the process and has done nothing to deter the practice. The current state of the law is reminiscent of the previous restrictions on abortions which drove the practice underground and gave way to unethical and dangerous practices. The current technological advances and the opportunities for the safe and effective practice of surrogacy make any law attempting to discourage or limit surrogacy practices punitive and undesirable. Parents who want to pursue surrogacy will do so anyway and will resort to unethical methods if they cannot do so lawfully. It has therefore become a matter of public policy for the legislatures to implement laws which realistically reflect the needs and resources of the modern age. (Add Appendices showing actual expenses and adoption procedure to support arguments that a surrogate mother should be allowed compensation over and above her actual expenses and the changes that would assist with regulating surrogacy practice in the UK) Research Methods 1. Conduct a background search of the evolution of surrogacy by reading Brazier Report: Surrogacy - Review for Health Ministers of current arrangements for payment and regulation (1998) Cm. 4068, i paras 4-9 and Warnock, M. Report of the Inquiry into HumanFertilisation and Embryology Cmnd 9314 (The Warnock Report) HMSO: 1984 2. Read the current legislative provisions which are: Code of Practice for the Human Fertilisation and Embryology Authority Human Fertilisation and Embryology Act 1990 and the Surrogacy Arrangements Act 1985 3. Search for general comments on Surrogacy laws on the internet and make use of C.O.T.S. (n.d.) http://www.surrogacy.org.uk/pdf/factsheet.pdf, Gregory, Richard.(1999) Not so Brave New World. http://www.fnf.org.uk/brave.htm, Johnson, Mark. (1996) SOME OBSERVATIONS CONCERNING THE LAW OF SURROGACY http://www.surrogacy.com/legals/article/checklist/chklst1.html and Report of the Committee of Enquiry into Human Fertilisation and Embryology (July 1984) http://www.bopcris.ac.uk/bopall/ref21165.html 4. Read Academic discussions about surrogacy as it relates to both legal and ethical situations to wit; Charo, R. “Legislative Approaches to Surrogate Motherhood” (1966) 16 Law Med & Health Care 95, Freeman, M. “Does Surrogacy Have a Future after Brazier?” (1999) 7 Med L Rev and Sly. K.M “Baby-sitting Considerations: A Surrogate Mother’s Right to Rent her Womb for a fee” (1983) Gonzago LR 359 and Sly. K.M “Baby-sitting Considerations: A Surrogate Mother’s Right to Rent her Womb for a fee” (1983) Gonzago LR 359 5. Read up on the Welfare Principle in journals and reported case law: Re W. (A Minor) (Residence Order) [1992] 2 F.L.R. 332, Re P. (Minors) (Wardship Surrogacy) [1987] 2 F.L.R, C, Re (A Minor) (Wardship: Surrogacy) [1985] FLR 846, Herring, Jonathan. The Welfare Principle and Parents Rights. The Journal of Social Welfare and Family Law. Volume 27, Number 2 / 01Jul2005. 6. Search for Adoption procedure online: Adoption Procedure.(June 2006) http://www.kirklees.gov.uk/community/health-care/foster-adopt/adoption-procedures.shtml#procedure (compare it to surrogacy practice for parental orders) Read More