What next for commercial surrogacy?

05/06/2018

It was reported last week that efforts are being made in Canada to change the country’s position on payment to women who act as surrogates, or what is described as “commercial surrogacy” (https://www.bbc.co.uk/news/world-us-canada-44243920 ). Anthony Housefather, a Liberal MP tabled a private member’s bill on 29 May which aims to remove the risk of criminal charges for those who pay for and receive donated sperm and eggs, as well as surrogacy services. 

There is only one recorded prosecution of an individual in Canada for breaching the prohibition on these payments, which resulted in the owner of a fertility agency named Canadian Fertility Consulting and the company itself being fined the sum of C$60,000. In 2016, it was reported that the demand for the company’s services had quadrupled in the years since the criminal charges were bought in early 2012. 

The current law in the UK contains a similar prohibition on “commercial surrogacy”. The courts will not enforce “surrogacy arrangements”, which are effectively contracts or agreements by which a woman agrees to carry a child with a view to that child, once born, being handed over to and parental responsibility being met by the person who is the other party to that agreement.  

In addition, one of the many criteria which must be satisfied before a court will make an order giving someone parental rights in relation to a child who has been carried by a surrogate is that no money or benefit can have been given to anyone (other than to cover their reasonable expenses) in consideration of the making of the order, the handing over of the child, or the making of any arrangements with a view to the order. However, the court has a discretion to authorise payments of this kind being made. The idea is that these payments should only cover out of pocket expenses, but in practice a fairly relaxed and liberal approach has been adopted in relation to this, with the most important issue seeming to be whether the payment and the circumstances indicate any abuse or pressure being placed on the surrogate mother to hand over the child. 

As a result of this, and the fact that individuals will travel abroad to get around the UK prohibition on commercial arrangements of this kind, there has been some debate about whether commercial surrogacy should be legalised in the UK, with the risks being managed by proper regulation of it as an industry. However, while reform of the law on surrogacy remains on the agenda, a move towards commercial surrogacy being legitimised does not seem to be near the top of the list of priorities. As a result of that, the advice is and must remain to ensure that if any payments are being made to the surrogate mother at all, they are modest and can be justified as covering only the reasonable expenses incurred by her as a result of the surrogacy.