Surrogacy in the UK–The Strong Rights of the Surrogate Mother

Surrogacy is a topic that comes up here with some regularity.   It’s not hard to see why, as it poses some fairly obvious legal and moral challenges.   As I’ve noted before the UK has an interesting and unusual approach to surrogacy and this is the subject of a fine little essay I came across today.   The author is Natalie Gamble, a UK lawyer who is both knowledgable and experienced.

As Gamble notes, in the UK the woman who gives birth is always the legal mother of the child.   This means, as Gamble’s title notes, that the surrogate has an absolute right to change her mind.

Remarkably, this is true whether the surrogate is genetically related to the child or not.   In other words, there is one rule for all surrogacy, whether what is known as gestational or traditional.   Personally I’m inclined to think this aspect of the UK rule is a good thing–if we distinguish between a genetically related surrogate and a surrogate who is not genetically related then we affirm that genetic connection (or lack thereof) matters.   Consistent with my assertion that it ought not to be a critical factor, I wouldn’t draw this distinction.  (I’m well aware that many other people disagree, which of course follows logically from an assertion that genetic relationship is all-important.)

What struck me most in Gamble’s essay is the timing mandated in the UK.

 The intended parents may apply to the family court for a parental order within the six months after the birth, and the birth parents then give up their status. The birth parents must give full, free and unconditional consent, and this cannot be given before six weeks after the birth. The only limited exception is where the surrogate cannot be found or is incapable of giving consent.

[Emphasis mine.]

There are two important things here.  First, the surrogate (and her partner/spouse) cannot give up parental rights for the first six weeks of the child’s life.   I know I just basically repeated what’s in the text above, but I think it is that important to get this point.   Six weeks in this context is a very long time.

Second, the UK surrogate has a stronger set of rights than does a woman who just gives birth and is planning to give up her child for adoption.   (I’m not sure in what way stronger–but I understand this to be the assertion Gamble is making.)

Being unable to give up parental rights for six weeks is not necessarily a good thing for the surrogate.  The vast majority of the time, surrogacy works smoothly.  (This is especially true if there is good screening of the participants.) So in the vast majority of cases, the intended parents should be raising the child from birth.  I suppose they are free to do so–nothing mandates that the surrogate actually be the person caring for the child–but the law doesn’t recognize that.   Indeed, for that first six weeks, the law is at odds with reality.  Given that six weeks really is a long time, that seems like it is just asking for trouble.

Gamble explains the origin of these provisions:  They date from a time when surrogacy was new and viewed with a great deal of suspicion.  Perhaps, as she suggests, it is time to move beyond that stance, especially as people can easily evade UK law by going abroad.

The question for me, though, is what should replace the current scheme.   Broadly speaking, I see two possibilities.   First, you could alter the rule that the surrogate is the legal mother of the child.   This would be a dramatic change that would completely alter the calculus of surrogacy.   Second, and much less drastically, you could cut down the six week period during which the surrogate cannot consent to the assumption of rights by the intended parents.

I’m inclined towards the less dramatic solution.   For a variety of reasons I’ve discussed in the past, I favor assigning legal parentage to the surrogate.    But why would you set different rules for surrogacy and adoption (in terms of waiting periods, say) once you’ve decided that both are permissible?

I know that in some states (here in the US) the post-birth period during which a birth mother can change her mind is extremely short–and I don’t doubt that it can be too short, just as it can be too long.   It’s the Goldilocks problem I suppose–find the period of time that is not too long, not too short, but just right.    But if you find that period of time, wouldn’t it make sense to have it be the same for adoption and surrogacy, especially if you consider both the surrogate and the woman who gives birth in the adoption setting to be legal mothers?

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