In February 2018, Olympic diver Tom Daley and his husband, Dustin Lance Black, announced that they were having a child together. At the end of June, the baby was born. But instead of using a surrogate from the UK, as might have been expected, the couple used an American surrogate.
Why did they not use a UK surrogate?
The pair decided to use a US surrogate due to the illegality of commercial surrogacy in the UK. According to the Surrogacy Arrangements Act 1985, no money other than expenses reasonably incurred can be given in relation to making the surrogacy arrangement. In this context, ‘reasonable expenses’ might refer to things such as maternity clothes for the mother, loss of earnings, the cost of travel and professional counselling sessions to work through any issues that might arise from the process. The surrogate cannot gain money as a result of the payment of these expenses.
Is commercial surrogacy really that bad?
After the positive response to Kim Kardashian’s use of a surrogate mother (see: https://www.lexsnap.com/blog/2018-01-17-surrogacy-how-do-we-know-the-rules), it seems strange that the response from the UK public to Daley and Black’s decision has been largely negative. Given that commercial surrogacy is illegal in the UK, is this because there is something inherently wrong with paying money for someone to act as a surrogate? Or is the UK failing to keep up with modern developments in the ways a family can be formed?
Commercial surrogacy does have its advantages. Not only does it benefit the prospective parents, in giving them a chance to have a child of their own, but also has numerous benefits for the surrogate. It can be a source of income and academics such as Herring have argued that it is mistaken to assume that surrogacy commodifies babies. Rather, the money paid acts as compensation for carrying the baby through what is a lengthy and sometimes uncomfortable and risky process. It can consequently yield benefits for the surrogate’s family, by giving the surrogate a greater chance of being able to provide for their own family.
However, with income comes the risk of coercion. Financial incentives might limit the ability of the surrogate to negotiate the terms of the surrogacy arrangement. Furthermore, there are health risks linked to surrogacy. India, for example, where commercial surrogacy is permitted, has the highest number of maternal deaths in the world. There are also some health risks associated with IVF treatment for the surrogate during pregnancy and for the child compared to one naturally conceived. But some might contend that these risks are negated by the possibilities surrogacy brings for the commissioning parents.
Other problems faced by surrogate parents
Daley and his husband also highlighted further issues with UK laws relating to surrogacy on the BBC’s Andrew Marr Show. If a sperm donor and an egg donor create an embryo and this is inserted into a surrogate mother, according to UK law, the surrogate is recognised as a legal parent even if she has no biological connection to the child. Moreover, if she is married, then her partner is recognised as being a parent.
This is due to the emphasis that English law places on the gestational mother. In the Human Fertilisation and Embryology Act 2008 (HFEA 2008 for short), ‘mother’ is defined as the woman who is carrying the child as a result of the placing in her of the embryo or the sperm and eggs. This applies regardless of whether the woman was in the UK or was elsewhere at the time this was done. As a result, UK surrogacy law can be difficult to navigate and often leaves prospective parents uncertain of their legal position.
Paying money for a surrogate in another country therefore does not circumvent the issue of who is considered as a legal parent. Daley and Black have stated that they have made the difficult decision to raise their baby in the UK, where they will face numerous legal challenges. It can take at least six months for parents who commission surrogacy abroad to be recognised as the parents of the child.
The demand for surrogacy is clearly increasing, as shown through trends over recent years. In 2014, at least 2,200 children were born in America through surrogacy arrangements - twice the amount of 2007. Meanwhile Britain registered 400 surrogate children in 2016, eight times as many as 2007. However, it remains to be seen whether UK law will shift towards acceptance of commercial surrogacy.
What can I do if I want to use surrogacy?
LexSnap can provide clear guidance on your options with regards to surrogacy. Our Surrogacy package gives advice on the types of surrogacy available to prospective parents and the procedures involved, as well as guidance on how to become a legal parent of a surrogate child. For more information, please see: https://www.lexsnap.com/pack/ch-new-surrogacy.