11 Constable Close, London NW11 6UA, UK
Social transformation together with the advance in medical science in the field of fertility treatment, has seen an ever-increasing demand for infertility services. Those involved recognize the speed with which developments and research are progressing as the Chairman of the Human Fertilisation and Embryology Authority (HFEA) stated in their recent Annual Report: `Times change, and the medical and ethical worlds move on. We recognize the need regularly to update our views and advice' (HFEA, 1997).
For those women who are medically unable to carry a pregnancy, there is the option of surrogacy. Surrogacy takes two forms: (i) full or host surrogacy where the embryo is the genetic material of the commissioning couple, and (ii) partial or straight surrogacy where the host is inseminated with the commissioning male's spermatozoa.
Surrogacy is a recognized and legal method of fertility treatment: see Section 1(A) of the Surrogacy Arrangement Act (1985) as amended by Section 36 of the Human Fertilisation and Embryology Act (1990). Within this legal framework however, it is proposed that changes are needed in the approach to, and management of, all facets of surrogacy. The issues surrounding surrogacy need to be faced and tackled in their entirety the legal aspects including the welfare and status of the child, the monetary considerations, the psychological implications, as well as the medical and ethical issues. There should no longer be consideration of specific aspects in isolation but surrogacy should be re-evalued globally in an informed manner. Any criteria drawn up should be seen to be flexible enough to allow adaptation and amendment yet be within acceptable legislation and implementation.
The Department of Health itself is obviously aware of the need for change and they are currently considering aspects of this (Department of Health, 1997). The Health Minister, when stating the terms of reference, has added `My aim is to ensure that the Government provides a sensible and sensitive way forward, within a framework that inspires public confidence, in an area of personal life where feelings are inevitably raw and highly charged for those involved'.
How to proceed?
The author suggests that a specific agency should be formed by the Department of Health which would work in close collaboration with the HFEA. The HFEA would continue to maintain control over the clinics offering in-vitro fertilization (IVF) treatment for surrogacy. The HFEA state that `their prime function is to set proper standards and practicable guidelines for clinics' (HFEA, 1997).
It is interesting to note that, as early as 1985, the Annual Representative Meeting of the British Medical Association (BMA, 1990), during their considerations on surrogacy, passed the following motion: `That this meeting agrees with the principle of surrogate births in selected cases with careful controls'. Where then to turn for a blueprint on which any newly formed agency could be modelled to carry out these `careful controls'?
Fostering has, over the years, become formalized and organized under umbrella agencies controlling all possible aspects of this work. All who undertake foster care are closely screened, interviewed, trained, monitored, allocated to a social worker, registered and above all remunerated according to a prescribed scale. Comparative criteria could be formulated for surrogates and commissioning couples. Surrogacy could then become a formalized contract between the involved parties where each is fully aware of their duties, rights, obligations, objectives, standards and commitments.
The National Foster Care Association (1996) states that `Regulations... expect carers to be involved in review meetings, providing and contributing to documentation and working with the child's parents and other relatives... This is made more complex by the large number... with emotional problems, learning difficulties and disabilities'.
Society accepts that there are those willing to offer foster care under often extremely emotionally and physically taxing circumstances yet find it difficult to admit that there are women prepared to offer themselves as surrogates of choice, without coercion or exploitation. By formalization, it is suggested that there would, over time, be changes in attitude towards surrogacy.
The legal issue of maternity is perhaps one of the most troublesome areas surrounding surrogacy. As the law stands at present, the carrying or host mother is deemed to be the legal mother of the child. Mary Hibbs (1997) states that within the current Act, `no surrogacy arrangement is enforceable by or against any of the persons making it. Although surrogacy is not prohibited, the law does little to encourage it. The surrogate is the legal mother of the child, whether or not she is the genetic mother.'
The Surrogacy Arrangements Act (1985), section 1(2) states that `a surrogate mother means a woman who carries a child in pursuance of an arrangement: (i) made before she began carrying the child; and (ii) made with a view to any child carried in pursuance of it being handed over to, and the parental rights being exercised (so far as is practicable) by, another person or other persons'.
Ethically it can be argued that the fetus is dependent for its development until birth on the biological mother yet this dependency does not make it the genetic material of conception. Conversely one can debate whether the obstetric right of the surrogate has preference over the birthright of the genetic parents.
Under current law, the commissioning couple is required to make application for a parental order or adoption order to establish their rightful parenthood. The birth certificate of a child born of a surrogacy arrangement shows the surrogate as the mother and her husband, if applicable, as the father. Recent improvements in the procedure required to obtain a parental order once the child is 6 weeks old and certain criteria are satisfied, would indicate that the legislators too, are aware of the need for change.
Through fostering and other welfare services, society has become familiar with certain terminology such as `carer'. Without in any way denigrating the meaning of the Act, consideration could be given to the surrogate mother being referred to only as `the surrogate' or if deemed acceptable, `the carer of the unborn child'.
It is suggested that changes in the law pertaining to the child should give all legal rights to the commissioning couple and not the surrogate. This would necessitate all official documentation being legally drawn up and signed at the initial stages of any surrogacy procedure. It would then establish a legal basis for the entire surrogacy arrangement including the status of the unborn child. By in depth professional preparation and selection before the signing of a formalized legally binding contract between all parties involved, many of the prevailing difficulties could be avoided.
The question of payment is a major and contentious issue when endeavouring to regulate surrogacy. At present the law lays itself open to the widest possible interpretation in stating in the Surrogacy Arrangements Act (1985) `that payments to or for the benefit of a surrogate or prospective surrogates are not regarded as being made on a commercial basis'. This was further referred to in the Human Fertilisation and Embryology Act (1990) with the words `The court must be satisfied that no money or other benefit (other than for expenses reasonably incurred) has been given or received'.
It is in this area in particular that much can be learnt from the official, legitimate evaluation and specified costs set out by the National Foster Care Association when dealing with fostering expenses. Transcribed into the field of surrogacy, the statuatory calculation of costs would eliminate the allegation of financial inducement.
The National Foster Care Association (1996) states: `The true cost of caring must be met and foster carers given the opportunity to receive payment for their time, experience and skills'. The Association also states that `Financial support to carers is one of the most important aspects of the foster care service'. Their recommendations are based on the level of allowances paid on `the Family Expenditure Survey and Equivalence Income Scales'. The National Foster Care Association produces a survey `with recommendations for a minimum level of allowances. These are related to the government calculated costs to parents of bringing up children'.
Foster care rates also vary according to the Local Authority involved, the ages and difficulties of the child, and the level of availability of foster carers. A formula for assessing payment levels for surrogates, to also include insurance during pregnancy, can justifiably incorporate many of these criteria.
The introduction of parties wishing to enter into surrogacy arrangements is at present handled by a small number of voluntary unlicensed organizations, e.g. Childlessness Overcome Through Surrogacy (COTS). This role should become part of any newly formalized agency and should totally replace these voluntary unlicensed agencies.
Counselling would need to be a statutory requirement of any newly formed agency. This would not only include all aspects determining the suitability of those entering a surrogacy arrangement, but would also require involvement with the surrogate and the commissioning parents during the pregnancy and after the birth.
It can only be hoped that, in the foreseeable future, much of the anxiety towards the manipulation of human reproduction as practised today will be allayed. We are part of a society with ever changing social expectations and parameters within which surrogacy has a role to play. We can no longer ignore its existence nor minimize its importance. Whilst recognising the manifold obstacles one must move foreward, drawing on other disciplines such as fostering where regulation, legalisation and normalization have been successfully introduced and have become accepted by society at large.
Notes
Previously published as Webtrack 43 on November 18, 1998
References
British Medical Association (1990) Surrogacy: Ethical Considerations Report of the Working Party on Human Infertility Services. British Medical Association, London, UK.
COTS (1993 & 1994) Childlessness Overcome Through Surrogacy. COTS, London, UK.
Department of Health (1997) Surrogacy: Review for the UK Health Minister of Current Arrangements for Payments and Regulation. Consultation Document and Questionnaire. Department of Health, HMSO, London, UK.
Hibbs, M. (1997) Surrogacy legislation time for change? Family Law, 27, August 1997.
Human Fertilisation and Embryology Act (1990) HMSO, London, UK.
Human Fertilisation and Embryology Authority (1997) Sixth Annual Report. HFEA, London, UK.
National Foster Care Association (1994) Foster Care Finance: Advice and Information on the Cost of Caring for a Child. National Foster Care Association, London, UK.
Surrogacy Arrangement Act (1985) HMSO, London, UK.
Submitted on February 20, 1998; accepted on October 19, 1998.
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