Surrogacy

What is a Surrogate?

Surrogacy is an arrangement whereby a woman - the surrogate - becomes pregnant and gives birth to a child on behalf of another couple or person. There are several different types or circumstances for this. The idea of another woman bearing a child for a couple to raise is something that has been around for hundreds of years; it’s even mentioned in the Bible. In the last hundred years or so, there have been several medical and social advances that have made surrogacy more acceptable and easier to manage. For example, the first gestational surrogate pregnancy was in 1985.

Surrogate mother


A situation where the surrogate is artificially inseminated with the father’s sperm, and so is genetically related to the child, is called a traditional surrogacy. These have been most common as they can be done in a “do it you” fashion without medical involvement if required. In some cases, if the father is unable to produce viable sperm, a traditional surrogacy may take place using donor sperm - in which case the resulting child is not genetically related to either of the parents intending to raise it.

With a gestational surrogacy, an embryo produced using an egg and sperm from the intended parents is implanted into the surrogate mother. The child is genetically related to the intended parents in this case.

Gestational surrogacy can also take place with either donor sperm or a donor egg. This may be used if the intended mother or father is not able to produce sperm or an egg - or in the case of homosexual couples who wish to have children. In these cases the surrogate has no genetic relation to the resulting child, but one of the parents does. It is also possible to have a gestational surrogacy with a donated embryo - often from couples doing IVF who have successfully become pregnant. In this case the resulting child has no genetic link to either surrogate or parents.

Surrogacy is a way for a couple - either heterosexual or homosexual - to have a child when they otherwise may not be able to. However, there have been several cases over the years where a surrogate mother has refused to hand the child over, and long court battles have ensued (usually ending in favour of the intended parents). There is also an ongoing debate regarding the use of surrogates, and whether in some cases these women are exploited or even coerced into becoming pregnant on behalf of another couple. Many also question whether it is even right for a woman to be allowed to make a contract over the use of her body. The issue of surrogacy can often bring up many ethical arguments, many of which can be very uncomfortable.

Why Surrogate?

Many couples choose surrogacy when they are unable to conceive a child naturally, and other options, such as fertility treatments and IVF, have failed.
There are numerous different causes of infertility, and in 25-30% of cases a cause cannot be found. Polycystic ovary syndrome in women is known for causing infertility, or at the very least fertility issues, as it is difficult for a sufferer’s ovaries to produce the necessary egg. Thyroid problems - whether overactive or underactive - may also cause infertility, and in some cases a woman may begin the menopause very early, meaning she has no chance of carrying a child herself. There may be scarring from surgery, fibroids, endometriosis or pelvic inflammatory disease, all of which can cause infertility. In addition, some prescription medication can affect fertility - especially medicines for fluid retention and psychosis, or chemotherapy. Age can also play a part in fertility, and it is often reported that as women pass the age of 30 they will find it increasingly difficult to conceive.

Men can also suffer with fertility issues, including decreased sperm mobility, a low sperm count or “abnormal” sperm. Testicular cancer, or treatments for other forms of cancer can affect fertility, as can other illnesses and medications.In some cases, both parents may be perfectly capable of conceiving a child, but one or both may have some form of genetic defect or illness they do not wish to pass onto a child. The most common example of this is haemophilia, which is a dangerous blood clotting disease that does not usually present in women but passes onto her sons. With a traditional surrogacy, the intended mother would not pass on such a condition to a child, as she would have no genetic link to it.

All of these issues can lead a couple to consider surrogacy as the best option for having a child or children.
Homosexual couples wanting children may choose surrogacy over adoption, for the same reasons a heterosexual couple might do so. There is a desire for one or both parents to be genetically related to the child and many couples feel that adoption is not an option for them because of the lack of a genetic link to the child. Many couples feel more comfortable with being more “in control” with a surrogacy situation; they can choose their surrogate, support her throughout the pregnancy, and in most cases can be present at the birth of their child to allow bonding from the very first moments of the child’s life.

Where is it Legalised?

Surrogacy is legal in the UK, but no money more than what would be deemed “reasonable expenses” can change hands. This is called altruistic surrogacy, and means that the intended parents can pay for the surrogate mother’s legitimate expenses surrounding being pregnant, but cannot pay her to be a surrogate; she cannot make money out of the transaction. Also it is important to bear in mind that a surrogacy contract cannot be enforced by law. This means that if either party has a change of heart, not a lot can be done about it; the contract is void and not recognised by UK courts. If the surrogate decides she wants to keep the child, she is legally entitled to do so, and if the intended parents decide they don’t want the child after all, the surrogate is legally responsible for the child.

Since 2013, the places where a woman can legally be paid to be a surrogate (commercial surrogacy) and carry another person’s child through IVF and embryo transfer include India, Georgia, Russia, Thailand, Ukraine and some US states. Places that permit surrogacy and recognise legal agreements often offer a way for the intended mother, especially if she is also the genetic mother, to be recognised as the child’s mother legally, without having to go through the adoption process. This is usually through what is known as a birth order, in which a court will rule on the legal parentage of a child, and requires the full consent of all involved. In most cases though, only a post-birth order is available, most probably out of unwillingness to force a surrogate to give up parental rights if she changes her mind once the child is born. Jurisdictions that offer this sort of thing are also more likely to provide some form of enforcement of surrogacy agreements.

Even in countries that do not legally recognise surrogacy, if the parents and surrogate proceed with their agreement without issue, so long as there are no changes of heart along the way. In places that specifically prohibit surrogacy, if the authorities find out about surrogacy arrangement legal proceedings may ensue. There was a famous case in Quebec where a surrogacy was halted, and the genetic mother was prevented from adopting a child born through a surrogate, even though this left the child with no legal mother.

The Role of a Surrogate

The basic role of a surrogate is to carry out a pregnancy on behalf of a person or couple who are unable to do so. She may be artificially inseminated with either the intended father’s sperm or donor sperm (traditional surrogacy), or she may have an embryo implanted in her (gestational surrogacy). In a traditional surrogacy, the surrogate will be the child’s genetic mother. With a gestational surrogacy, she has no genetic link to the child she carries. She may be a friend or acquaintance of the person or couple who are intended as parents, or they may find her through a website or similar which is set up specifically to pair prospective parents with surrogates. There are arguments on both sides as to which situation is best.

In the UK, a surrogate mother may not make a profit from her role, but the intended parents may compensate her for reasonable expenses, for example maternity clothes, supplements or time off work. She may also make an agreement with the intended parents to allow them to come to ultrasound scans or midwife appointments, or to be present at the birth. This sort of thing is best agreed before the surrogate becomes pregnant, and it is important to remember that any agreement made between a surrogate and the intended parents is not enforceable in a UK court of law. That means that if either party has a change of heart on the situation, the other has no recourse. If the surrogate decides she wants to keep the baby, even if she is only a gestational surrogate and the child is not genetically hers, under UK law she may do so. Similarly, the intended parents may change their minds about wanting the child, and the surrogate will be the legal mother. She is also not legally able to sue for payment of her expenses if the couple does not pay.

In a typical surrogacy case, once the child is born the surrogate has no relationship with it. The child is immediately put up for private adoption by the intended parents; they then adopt the child and the agreement is over.
In countries where surrogacy is recognised, there is sometimes provision for intended parents to become the legal parents of the child without going through the adoption process. However, in the UK this is not possible, as surrogacy is not legally recognised.

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