According to newspaper reports this week, a one-year-old boy has been left in limbo, as a ward of court, with no legal father or mother, due to outdated surrogacy laws that deny his genetic father the right to be his legal father.
As is often the case with news items, there is more to this story which follows a judgement published this week. For a start, while the boy is indeed in legal limbo during the court case, and his genetic father has indeed been denied a parental order, the father has always been able to adopt the child and take on all the rights and responsibilities of any other single father.
Secondly, the court ruling simply upholds both the law and intent of a law passed in 2008, which is that a surrogate child is better off being raised by a couple than by a single parent.
Considering that (as I’ve recently blogged) a steady flow of surrogacy arrangements are creating highly complicated, controversial and confusing ‘family’ arrangements, and are really stretching the law to its limits, this ruling is a welcome one. It is about time that the law and its original purpose was upheld (although I suspect that the judge, Sir James Munby, would not personally agree with the law nor judgement that he gave).
So what is this latest case?
A young boy was born last year in Minnesota in the USA, conceived with a British man’s sperm and an anonymous donor egg which was implanted in an American surrogate mother. The British man, who cannot be named, paid a US agency £8,000 and a surrogate mother more than £20,000 for this arrangement. He then returned to this country, bringing the child with him.
I presume that the man knew that the surrogacy laws in the US and UK are different, and that he hoped he’d either be able to negotiate his way around the law here, or (more likely) push for the law to be changed here to fit his own situation.
However the judge ruled that whatever the position in the US, English law clearly recognises the surrogate mother as the child’s only legal parent (this is to protect surrogate mothers). And the law (section 54 of the Human Fertilisation and Embryology Act 2008) says that only ‘two people’ – effectively a couple – can be officially recognised as parents of a surrogate baby. In this case, the problem was that the parental order application was made by a single parent, not the ‘two people’ required by the Act and passed by our elected legislators.
The judge quoted the clear reasoning given to justify the 2008 law when it was originally passed:
‘…Surrogacy is such a sensitive issue, fraught with potential complications…. (so) the 1990 Act quite specifically limits parental orders to married couples where the gametes of at least one of them are used. That recognises the magnitude of a situation in which a person becomes pregnant with the express intention of handing the child over to someone else, and the responsibility that that places on the people who will receive the child…such a responsibility is likely to be better handled by a couple than a single man or woman’ (emphasis added).
In other words, it was made clear that surrogacy is different to both adoption and IVF, and it involves agreeing to hand over a child even before conception.
In the UK there are two routes by which Courts can transfer parental responsibility from a surrogate mother to the father: through either a parental order or an adoption order. So this father still has the second option open to him, which is almost guaranteed to be granted.
In rejecting the man’s pioneering bid for a ‘parental order’, Sir James said that only Parliament could change the law.
The succession of difficult cases in the news this year is actually part of a bigger campaign to change the laws on surrogacy, as is clearly articulated by leading lawyer, vocal advocate for more liberal laws and the solicitor representing the father, Natalie Gamble:
‘This is about whether the court can stretch outdated laws to recognise the modern families actually now being created, and to protect the children being born into them. UK law has come so far over the last 10 years in recognising non-traditional families and rightly so, since all the research shows that children thrive from high quality parental relationships, regardless of the number or gender of their parents. We want to see children being born through surrogacy to single parents being treated in the same way as children being born to couples.’ (emphasis added)
As an aside here, her matter of fact statement, that all the research shows children thrive regardless of the number or gender of their parents, is not true. I’ve blogged here on it, clarifying that there is still very little research on this. Even the leading researcher, Susan Golombok, herself admits this, and agrees that no substantive conclusions can be drawn on the research! Whereas the research literature on the beneficial outcomes for children raised by continuously married parents is strong, and based on a large population and thousands of academic studies.
So what next? It is pretty clear. The campaign by pressure groups to change surrogacy laws will go up a gear. They will try to influence public opinion through editorials, commentaries, tweets, articles and court cases, claiming the law is no longer fit for purpose. The consequent danger is that judge-made law will be directly influenced by public opinion, pressure groups or by the media, being persuaded to ‘move with the times’.
Yet laws made under these circumstances run the risk of failing to consider overall, long term consequences and effects on vulnerable people. As this paper explains, the maxim ‘hard cases make bad law’ takes as its starting point the premise that an extreme situation (which will naturally arouse sympathy) is ultimately a poor basis for the making of a general law that should cover a far wider range of less extreme cases.
The present law on surrogacy is clear, as is its intent: it exists to protect all parties, particularly the most vulnerable (surrogate children and mothers). It does not exist primarily to accommodate all the desires of all prospective parents.
However, while the law has established clear principles, it still allows for some discretion to temper justice with mercy in their application by prosecutors and judges, thus there is room within the law to accommodate most – but thankfully not all – cases.