Surrogacy: What happens if you change your mind?

Last month, Wisconsin’s Supreme Court was called upon to decide whether surrogacy agreements were enforceable contracts there.

The case concerned a commissioning mother, Monica, who had entered into a surrogacy agreement with David and Marcia.  Monica agreed to carry a child for them, after being artificially inseminated with David’s sperm. 

Each party took legal advice and a written contract was prepared.  It provided that Monica’s parental rights would end on the child’s birth. 

Monica subsequently changed her mind, and litigation followed.  David sought an order for specific performance of the agreement – in short, requiring Monica to do what she had agreed to do.

David’s application initially failed.  The Judge decided the agreement was null and void.  This was because it did not comply with local requirements for the voluntary termination of Monica’s parental rights.

At a trial in 2011 to determine the child's best interests – he was by then three years old - a Judge ordered that Monica should have custody, but that David should have access.   That access was to be for six hours every other weekend for two years, and then for the whole of every other weekend after that.

David and Marcia appealed.

Monica tried to argue that the whole contract should be void because it went against public policy.  By majority decision, the Supreme Court disagreed. 

It found that the surrogacy contract must be considered in the judge's determination of custody and access, unless its terms were contrary to the child's best interests.  To that extent, the surrogacy agreement was an enforceable contract, save for the provision terminating Monica’s parental rights. 

Of Monica’s arguments to seek to avoid the contract, the court’s majority decision observed: 

"There are no facts in the record to indicate, nor does Monica argue, that the contract should be void or voidable due to misrepresentation, mistake, duress, undue influence or incapacity."

The majority Judgment (given by Justice Annette Ziegler) continued:

"Enforcement of surrogacy agreements promotes stability and permanence in family relationships because it allows the intended parents to plan for the arrival of their child, reinforces the expectations of all parties to the agreement, and reduces contentious litigation that could drag on for the first several years of the child's life".

Chief Justice Shirley Abrahamson agreed the first instance Judge had erred by ignoring the contract.  However, she disagreed with the majority’s conclusion that such contracts should be enforced "unless contrary to the best interests the child."  She wrote:

"The majority opinion has no hesitancy in declaring that public policy supports the enforcement of such contracts. Yet the validity of surrogacy contracts, in whole or in part, is at this very time being debated across the globe."

The decision was especially significant, because Wisconsin has no statutes or case law that directly addresses enforceability of surrogacy arrangements.  The court called on the State government to take the lead in enacting legislation to regulate surrogacy and surrogacy agreements.

Back on this side of the globe, surrogacy agreements are not enforceable as contracts in the UK.  Commissioning parents who enter into a surrogacy arrangement may seek a Parental Order.  The effect of such an order is to transfer parent rights and entitlements from the surrogate mother (and any other legal parent, which may include her partner in some circumstances) to the commissioning parents.

But one of the prerequisites for a Parental Order is that the surrogate mother (and any other legal parent) gives consent freely and with full understanding of the process and its implication.  The consent must be unconditional.  The surrogate mother is entitled to change her mind, and consent given before the child is at least six weeks old is not valid. 

What happens here if the surrogate genuinely changes her mind?  This was an issue considered by our High Court in London about two years ago.  Mr Justice Baker had to settle arrangements for a baby girl.  She had been conceived following a surrogacy arrangement.  The surrogate mother changed her mind when the child was seven days old, and wished to keep the child.

The Judge decided that the baby should continue to live with the surrogate mother and have contact – which she had already been having – with the commissioning father.  That, the Judge determined, was the arrangement that was in her best interests, and the only issue the court had to resolve.  Putting the enquiry in another way, in which home was she more likely to mature into a happy and balanced adult and to achieve her fullest potential as a human? 

Ultimately, the Judge reached his conclusion based on his assessment of the capacities of the various adults to meet the child’s needs.  He decided that to remove the child from the surrogate mother would cause emotional harm.  The Judge believed the commissioning father lacked insight into the importance of the child’s relationship with her. 

Of the change of heart by the surrogate mother, Mr Justice Baker observed that in some cases a promise to give up the baby might indicate a lack of commitment to the child, calling into question the mother’s capacity to care.  However, in the circumstances of this case, the court should not attach undue weight to the surrogate mother’s original promise to give up the baby.

Statistically, changes of heart by the surrogate or commissioning parents are rare.  Surrogacy UK estimates that only about 2% of surrogacy arrangements break down.  

 

What the Wisconsin case and the decision of Mr Justice Baker here in England each demonstrate is the need, in that small cohort of cases where the arrangement breaks down, for urgent legal advice from an expert in surrogacy.  

The human cost of unregulated commercial surrogacy

In one of last week’s blogs, I looked at the burgeoning commercial surrogacy industry in Nepal.  Interest groups there were concerned that the lack of regulation left vulnerable and disenfranchised women at risk of exploitation.  Reference was made to the Indian experience, and how the absence of a legal framework left Indian surrogate mothers ill-protected.

The extent of the vulnerability of surrogate mothers in India is highlighted in a recent report from the Centre for Social Research (CSR).  The Centre is a non-profit, non-governmental organisation based in New Delhi working to empower Indian women and help protect their fundamental rights and freedoms.

India has long been a popular destination for prospective parents from Australia, the UK and elsewhere seeking to have a child through surrogacy.  CSR estimate that the resulting surrogacy industry, which is flourishing in the absence of legal protections, is worth about US$2 billion.

Looking to see whether the industry was as deeply exploitative as feared, the CSR undertook a survey of 100 surrogate mothers and 50 commissioning parents in Mumbai and New Delhi. 

CSR’s report, “Surrogacy Motherhood:  ethical or commercial?” summarises the trends emerging from that survey.  Even taking into account the relatively small sample size, those trends are alarming, and include the following: 

Ø                  surrogacy agreements between the surrogate mother and the commissioning parents were normally signed in the second trimester, after the pregnancy had been confirmed. 

Ø                  most surrogate mothers were not given a copy of their agreement and were not aware of its terms.  "The freedom of the surrogate mother is an illusion," says the report.

Ø                  surrogacy agreements rarely addressed issues relating to the health and wellbeing of the surrogate mother.  Where they did, it was usually only incidental to the health of the child she was carrying. 

Ø                  if a congenital defect was detected in utero, or the child was not of the preferred gender, it was often chemically aborted, and often without the surrogate mother's consent or knowledge.  According to the report, "There have been instances where the contracting individual has specified the sex of the baby, refused to take the baby if it was not born normal and filed a suit against the surrogate saying she had broken the contract."

Ø                  surrogate mothers were paid about 1% or 2% of the fees charged by the clinic.  Where the pregnancy was terminated, or the commissioning parents refused to take the child, the surrogate was often only paid half of the agreed fee.  Some surrogates were paid nothing.

Ø                  the actual payment received by the surrogate mother ranged from between 2.1 and 4 lakh of Rupees (between about £2,300 and £4,350), depending on where the arrangement was undertaken. 

 

Compare this with India’s average per capita income – in February 2013, this was estimated to be 68,750 Rupees (£750).  So, whilst only a fraction of what clinics are earning, a surrogate mother can earn the national average annual income many times over from a single pregnancy. 

Ø                  the fate of children born with congenital defects was unclear.  Only 6% of commissioning parents in New Delhi and 26% in Mumbai said that they would take the baby regardless.

Ø                  there was an increasing trend to use more than one surrogate mother. Commissioning parents looked upon it as a more economical option, since some clinics offered “2-mothers-for-1-guaranteed-pregnancy” discounts.

Ø                  most surrogate mothers stayed in hostels or shelters during the pregnancy to avoid the stigma of being a surrogate and to avoid being infected with STIs during pregnancy.

Ø                  many commissioning parents are ethnically Indian themselves, living in Western countries where surrogacy was illegal.

 

The report includes some appalling anecdotes about the extent of the oppression rife in the surrogacy industry.  In one instance: 

"a shocking case of surrogacy was unearthed in the Bombay International Airport, where a foreigner couple went for surrogacy in India only for organ transplant for their sick child in their country."

Unsurprisingly, the resounding recommendation is for a clear legal framework.  There was insufficient protection for the surrogate mother’s health, or to protect her from exploitation. 

“Surrogacy arrangements have made child a ‘saleable commodity’, and complications have arisen regarding the rights of the surrogate mother, the child and the commissioning parents.  As there is no legal provision to safeguard the interests of the surrogate mother, the child, or the commissioning parents in India, looking at such an issue from commercial or business point of view has complicated the matter further.”

Further research was required, the report concluded, to assist in initiating legal provisions to properly regulate surrogacy practices and protect the interests of the surrogate mother and, crucially, the child.

At which point (and at the risk of sounding like a broken record) I return to one of my favourite topics from recent weeks …

 

I looked in a blog a few weeks ago at European research on whether a standardised surrogacy framework within the EU was achievable.  A similar piece of research is underway via the Hague Conference, with a correspondingly broader scope. 

Those with experience of transnational surrogacy in any capacity – commissioning parents, surrogate mothers, legal advisers, etc – are invited to share them by contacting the Hague Conference’s Permanent Bureau.  Legal professionals with relevant practical experience are invited to complete a Questionnaire online.  Responses close at the end of September 2013.

The Indian research demonstrates that, only by identifying the nature and extent of the issues that arise due to current surrogacy practices, can a properly formulated legal, medical and ethical framework emerge. 

Nepal's booming trade in commercial surrogacy

Within Asia, India has long been a popular destination for prospective parents from Australia, the UK and elsewhere who seek to have a child through surrogacy.  Commercial surrogacy in India is booming, and the government there is struggling to regulate what has become an industry.

The exponential growth of commercial surrogacy appears now to have spread to India’s neighbour, Nepal.  Human rights organisations doing research on commercial surrogacy in Nepal point to a marked increase in such cases.  This is particularly so along the Terai (or Madhesh) region on the shared Indian / Nepalese border.

Initial research on behalf of NAWHRD has identified the border areas of Nepalgunj, Biratnagar and Jhapa (amongst others) as fast turning into attractive destinations for commercial surrogacy.

The organisation’s chairperson, Renu Raj Bhandari, has called upon the Nepalese authorities to pay attention to the phenomenon and to regulate it.

“India is already a world hub for surrogacy arrangements. And because of long standing ties between India and Nepal, it can be assumed that women in Nepal are and will continue to become increasingly sought as gestational surrogates, too. 

“In the preliminary phase of the research we are conducting we have found that some areas in the Tarai belts have already attracted service seekers”.   

A local human rights activist and advocate, Meera Dhungana, agrees:

“Poverty is the basic reason behind thriving business of commercial surrogacy in India. We know the status of poor women in Nepal. If we expect to act only after the problem grows, many women are going to be exploited badly.”

Surrogacy always throws up complicated legal and ethical issues, and international surrogacy all the more so.  The Nepalese experience demonstrates that the wave of surrogacy as a global phenomenon continues to crest.  I looked in a recent blog at European research on whether a standardised response to surrogacy within the EU was achievable.  A similar piece of research is underway via the Hague Conference, on a broader scale. 

Those with experience of transnational surrogacy in any capacity – commissioning parents, surrogate mothers, legal advisers, etc – are invited to share them by contacting the Hague Conference’s Permanent Bureau.  Legal professionals with relevant practical experience are invited to complete a Questionnaire online.  Responses close at the end of September 2013,

 

Those considering surrogacy – whether as commissioning parents or surrogates – should seek specialist advice as early in the process as possible.  If there are potential problems with a surrogacy arrangement, early identification and management will help ensure a positive outcome.