Legal Motherhood in Surrogacy: UK Law, Case Studies, & Comparison

This report delves into the complex legal landscape of surrogacy, specifically addressing the question of who is considered the legal mother. It begins with an introduction to surrogacy, differentiating between various types of parentage (genetic, gestational, and psychological) and surrogacy arrangements (traditional and gestational). The main body of the report focuses on UK law, detailing the Surrogacy Arrangements Act 1985 and the Human Fertilisation and Embryology Act 2008 (HFEA 2008), which govern surrogacy practices. It also analyzes relevant case laws, including X (A Child) (Parental Order Time limits), Re D (Minors) (Surrogacy), A v P, Re Z (A Child) (Human Fertilisation and Embryology Act: Parental Order), and Re X & Y (Foreign Surrogacy). Furthermore, the report evaluates international laws from the United States (California), India, and Ukraine, comparing them with the current UK legal framework and examining how these jurisdictions handle surrogacy contracts and agreements. The report concludes with a synthesis of the findings, highlighting the complexities and variations in determining legal motherhood in surrogacy cases across different legal systems.

Who should be considered as the Legal
mother in the context of Surrogacy?

TABLE OF CONTENTS
INTRODUCTION...........................................................................................................................4
Surrogacy:........................................................................................................................................4
TYPES OF PARENTAGE..............................................................................................................5
Genetic parenthood......................................................................................................................5
Gestational parenthood................................................................................................................5
Psychological parenthood............................................................................................................5
DIFFERENT TYPES OF SURROGACY.......................................................................................5
Traditional surrogacy:..................................................................................................................5
Gestational surrogacy..................................................................................................................6
MAIN BODY..................................................................................................................................7
UK law.........................................................................................................................................7
Law that governs Surrogacy (Surrogacy Arrangement act 1985,HFEA 2008)...........................8
Surrogacy Arrangement act 1985-...............................................................................................8
Human Fertilisation and Embryology Act 2008 (HFEA 2008)-.................................................9
CASE LAWS.................................................................................................................................10
X(A Child) (Parental Order Time limits)..................................................................................10
Re D (Minors) (Surrogacy)........................................................................................................10
A v P:.........................................................................................................................................10
Re Z (A Child) (Human Fertilisation and Embryology Act: Parental Order):..........................11
Re X & Y (Foreign Surrogacy).................................................................................................11
Evaluating different journal articles..........................................................................................11
Evaluating International law of countries (United states-California, India & Ukraine)
&analysing how is differs from the current UK law and the way in which they handle the
contract and agreements related to surrogacy............................................................................13

Laws governing in US California..............................................................................................13
Laws governing in India............................................................................................................14
Laws governing in Ukraine.......................................................................................................15
CONCLUSION..............................................................................................................................16
BIBLIOGRAPHY..........................................................................................................................19

INTRODUCTION
Surrogacy:
According to Warnock report, Surrogacy may be served as a practice of giving birth to
the child of others and handed over the same after birth. In other words, it can be stated that in
surrogacy one woman carries or give birth to the child for another with an intention to handover
to the concerned authority. In the recent times, artificial insemination and the development
aspect of in vitro fertilization have eliminated the need for sexual intercourse1. From research, it
has been assessed that in the past time frames sexual intercourse was the main requirement for
surrogated pregnancy. Now, surrogacy can be done through taking into consideration several
forms. In this regard, the commissioning mother may be a genetic in which she provides egg or
may make no contribution in pregnancy. Further, in this, genetic father may be husband of the
commission or carrying mother.
Along with this, anonymous donor also makes vital contribution in the surrogated
pregnancy. Thus, considering all such aspects it can be presented there are several possible
combinations that can be undertaken for the purpose of child conception, birth and early
environment. Apart from these, the most popular form of surrogacy that is considered now a
day’s including artificial insemination and in vitro fertilization. Under artificial insemination,
carrying mother is recognized as genetic and inseminated with semen from the male partner of
commissioning couple2. Thus, in the case insemination, semen is introduced into woman through
the artificial means. On the other side, in vitro fertilization, both egg and semen are the results of
1Surrogacy. 2017. [Online]. Available through:
<https://www.lajollaivf.com/fertility-treatments/surrogacy-san-diego/>.
2Report of the committee of inquiry into human fertilization and embryology. 2017. [pdf].
Available through: < http://hfeaarchive.uksouth.cloudapp.azure.com/www.hfea.gov.uk/docs/
Warnock_Report_of_the_Committee_of_Inquiry_into_Human_Fertilisation_and_Embryology_1
984.pdf>.

the activities performed by commissioning couple. Hence, under such fertilization, resultant
embryo is transferred and implants in the carrying mother for the purpose of pregnancy.
TYPES OF PARENTAGE
Genetic parenthood
A biological parent is the one whose gametes resulted or comes into the form of child. In
other words, sperm of male and female’s ovum are resulted into child3. Thus, it can be mentioned
that a parent who conceive a child comes under the category of genetic parenthood.
Gestational parenthood
For the completion of pregnancy, surrogate mother carries a fertilized embryo. In the
gestational parenthood, uterus of surrogate is used for nurturing and development of an embryo
into a baby. In this, the mother who bears the child is legally the child's mother, whereas the
mother who provided the egg is no
Psychological parenthood
A psychological parent is one who, on a continuous, day-to-day basis, through
interaction. The psychological parent may be a biological, adoptive, foster or common law
parent.
DIFFERENT TYPES OF SURROGACY
Traditional surrogacy:
Such kind of surrogacy is also termed as partial or genetic due to having biological link.
Moreover, in this, surrogate, concerned female, provides eggs so she is highly connected or
related to the child. By doing assessment, it has found that in the case of traditional surrogacy
there are two forms from which surrogate undergoes either artificial insemination or IVF. In this,
3Genetic parenthood. 2017. [Online]. Available through: <https://prezi.com/-q6qaquulsgj/social-
gestational-and-Ge sgenetic-parenthood/>.

surrogacy is highly based on the sperm comes from the male or donor4. However, g such kind of
surrogacy method is considered as older one due to having genetic links between the entities
such as surrogate and the baby. Along with this, due to the downside risk associated with such
kind of surrogacy now people less prefer in relation to adopting traditional method. In traditional
surrogacy, people who may consider for the same includes single men, same sex couples and
intended mother who can’t produce healthy eggs. Process of traditional surrogacy highly differs
from the aspects of gestational.
In addition to this, traditional surrogacy is considered as less expensive as compared to
the other forms. Along with this, under traditional surrogacy, there is no requirement for
intended mother to undergo with the medical process. Moreover, in this, eggs produced by
intended mother are not harvested for the creation of embryo. However, there are some
limitations that closely associated with the aspects of traditional surrogacy. In this, surrogate is
the biological mother of child and has parental right on baby. On the basis of such aspect
surrogate has power in relation to changing mind and keep the baby with herself. Thus, it is
considered as one of the main limitations due to which now individuals use gestational
surrogacy.
Gestational surrogacy
In recent times, people lay high level of emphasis on gestational surrogacy in which surrogate
mother carries a pregnancy and give birth to the child. Under such surrogacy, egg and the sperm
of the intended parents are used. The main aspect of gestational surrogacy is the lack of genetic
relations with the child. In this, surrogate acts as a gestational carrier for the pregnancy. From the
evaluation of types, it has asserted that egg of gestational surrogate is used during the IVF cycle.
Hence, such cycle is occurring with process of in vitro fertilization significantly5. Thus, it can be
depicted that in gestational surrogacy, surrogate is considered as birthmother because she carries
4Types of surrogacy in UK. 2017. [Online]. Available through: <
https://www.surrogacyuk.org/about_us/types-of-surrogacy>.
5Traditional Surrogacy and Gestational Surrogacy. 2017. [Online]. Available through: <
https://www.fertilitysourcecompanies.com/what-is-a-surrogate-mother-or-a-gestational-carrier/>.

and delivers baby. On the other side, in traditional surrogacy, egg of surrogate mother is used so
she is recognized as biological mother. This is one of the main aspects due to which majority of
the people prefer gestational surrogacy over the traditional one.
Along with this, such kind of surrogacy is not legally complex which in turn encourages
individuals towards surrogacy. By doing research and evaluating articles it has assessed that host
or gestational surrogacy mainly includes three stages such as Egg donation, fertilization and
transfer. Description of the main stages of gestational surrogacy is enumerated below:
 Egg surrogacy: In the first stage, for the extraction of the number of eggs female IP or
egg donor undergoes from the specific process.
 Fertilization: Once egg surrogacy has been done thereafter then the egg is fertilized with
semen
 Transfer: At the last stage, the fertilized egg is transferred into the womb of surrogate
mother.
MAIN BODY
UK law
Surrogacy is a quite restrictive practice in UK which is governed by several legal norms.
This is on considering a factual instance of advertising in UK to hire a surrogate mother is
directly referred as a crime or one assumes that the one who have advertised such post is eager to
act as a surrogate. Also, on considering other legal norms relating to the act of surrogacy in UK,
planning to deal for surrogacy with assistance of an agent on commercial basis is together
referred to be a crime6. Beside this, any agreements of surrogacy are together not enforceable in
UK courts which directly states that one cannot refer to get into a lawfully binding agreement of
surrogacy in UK. Although, there existed a vital role of the family courts that have practiced to
offer a concerning outlook to the parents who have intended to apply for a supportive
6Osmotherley, J., 2015. UK Surrogacy Update. [Online]. Available through:
<https://www.clarionsolicitors.com/blog/uk-surrogacy-update>.

arrangement of surrogacy. But, they have in turn had an extensive will to act in a best possible
manner to serve the safeties of the child without any guaranteed intent.
Law that governs Surrogacy (Surrogacy Arrangement act 1985,HFEA 2008)
This section is to demonstrate the legal norms that tends to govern the practice of
surrogacy in UK. It is thereby found that under the clauses of English law, the official mother of
the child who have born through the practice of surrogacy will always represent as the legal
mother of the born child. This is basically on following the common legal norms where the
woman carrying a child is always intended to be the legal mother. This law is however created to
benefit the mother who are conceiving with assistance of donor eggs. Thus, in case of
surrogacies, this indicates that the one who is intending to become a mother has no such
recognition of a parent despite of being the biological mother of the child7. It thereby depends
upon various type of surrogacies and on whose basis, the legal mother of a surrogate mother is
being determined in UK. Although, it is together on considering the fact where there exists 2
main type of surrogacies namely traditional and gestational also termed as straight and host.
Among these two measures, the straight or traditional surrogacy is not legally permitted in UK
and they are therefore bound to adopt the practice of host or gestational surrogacy.
It is thence important to acknowledge the legal bureaucracies that are required to be
followed for the practice of surrogacy and the acts governing it, as stated below-
Surrogacy Arrangement act 1985-
This is the main act which is mainly concerned about prohibiting any case of commercial
surrogacy preparations in the nation. This act has duly reflected the social attitude of people
towards surrogacy in the era of 80’s. The current UK surrogacy law is still having its origin in
1980’s where this act rushed through assembly as a response towards the case of baby Cotton.
This law was thus created on considering that a restrictive arrangement of surrogacy will tend to
smoothen this practice even before its development8. This law stated that under a surrogacy
7History of UK surrogacy law. 2014. [Online]. Available through:
<http://www.nataliegambleassociates.co.uk/knowledge-centre/history-of-uk-surrogacy-law>.
8Norton, W. amd et. al., 2015. A survey of UK fertility clinics' approach to surrogacy
arrangements. Reproductive biomedicine online.31(3). pp.327-338.

arrangement, a woman carries a child to benefit other by giving birth. However, the most
common arrangement that has been done in agreement to this law is the surrogate mother will be
artificially fertilized by the male partner of the contracting parents with no direct biological
relationship among them. Such type of insemination may take place in laboratories by using the
inherited material from both the contracting parents. This is basically to transplant the resulting
embryo into the surrogate mother.
Human Fertilisation and Embryology Act 2008 (HFEA 2008)-
This is yet another leading law governing the practice of surrogacy in UK and was firstly
formed in the year 1990. According to which, the enforcement of surrogacy arrangements
depicted a principal need of going through a legal mechanism by referring to the parental orders.
It was with a vital aim of sanctioning the provisions of surrogacy in a retroactive way9. In whose
accordance, the baby will be legally handed over to the authorized parents with everyone’s
agreement. However, the provisions that were meant to create parental orders were not properly
intended as an outline for surrogacy and was simply attached onto a Bill at the very last moment.
This led to an embarking change in the year 1997 where the Labour administration specially
made a separate report on the law of surrogacy with some additive requirements in the existent
one10. This in turn led to the formation of a new legislative law called HFEA 2008 to tighten up
the rules on making payments with certain altered rules of surrogacy agencies by the Health
Department of UK. Although, nothing from the Brazier Report's commendations were
implemented ever. The HFEA 2008 in turn led to 2 major changes where the non-profit-making
agencies of surrogacy were formally made legal. Also, the classification of parents who could
apply for parental order has been expanded to involve some more inclusions to authorize both
unmarried and same sex couples.
9Goodwin, M. and Bates, S., 2016. The ‘powerless parliament’? Agenda-setting and the role of
the UK parliament in the Human Fertilisation and Embryology Act 2008. British Politics.11(2).
pp.232-255.
10Horsey, K., 2015. Revisiting the Regulation of Human Fertilisation and Embryology.
Routledge.

CASE LAWS
X(A Child) (Parental Order Time limits)
By doing analysis of such case, it has assessed that, as per section 54 (3) of Human
Fertilisation and Embryology Act 2008, court can make or give a parental order only when
application is made after the expiry of 6 months. It must be from the day on which child was
born.
Re D (Minors) (Surrogacy)
From assessment, it has found that in the case of D& L minor surrogacy the children had
been born in India to a surrogate mother. In this, both biological and civil partner sought a
parental order. Hence, in such case consent of mother could not be found11. In this, request in
relation to parental order was granted and retrospective authorization is accountable for making
payment regarding surrogacy. Thus, by taking into account 2002Act approval was given by the
court.
A v P:
In the concerned case, M applied for a parental order by taking into consideration the Act
of 2008. In this, surrogacy arrangement had been undertaken in India for child birth that was not
lawful and father of the child died due to the cancer. Further, clinic could not guarantee
pertaining to the biological relationship with child. In this, several aspects were considered in
relation to not giving order such as lack of legal relationship between the child and biological
father who also recognized as commissioning authority12. In addition to this, surrogate child had
denied in relation to attaining both social and emotional benefits associated with such
relationship. Along with this, considering the death of father parental order was not given to M.
11 Re X (A Child) (Surrogacy: Time limit) [2014] EWHC 3135 (Fam). 2016. [Online]. Available
through: <http://www.familylawweek.co.uk/site.aspx?i=ed133396>.
12 A V P (SURROGACY: PARENTAL ORDER: DEATH OF APPLICANT. 2016. [Online].
Available through: <http://swarb.co.uk/a-v-p-surrogacy-parental-order-death-of-applicant-fd-8-
jul-2011/>.

Re Z (A Child) (Human Fertilisation and Embryology Act: Parental Order):
Court gave judgment in such case that a single parent, as a sole applicant, the father
cannot bring himself as per the section 54 (1) of 2008 Act. Thus, in the conclusive way it can be
presented that as per Human Fertilisation and Embryology Act 2008 and under section 54 (1)
parental orders are not available to single parent.
Re X & Y (Foreign Surrogacy)
In such case, a couple had made surrogacy arrangements with an Ukranian woman.
Hence, in this, she gave a birth to twins through the means of eggs fertilized donated by the male
applicant’s sperm. Thus, in the case of foreign surrogacy by applying or undertaking Human
Fertilization and Embryology Act (1990) judgment was given by the court. In relation to the
issue of consent which is required by surrogate parent’s relative provisions of HFEA 1990 were
considered. In this, judge clearly mentioned that legal consent had been taken from the surrogate
mother and payments made were also acceptable13. Hence, by taking into account all the aspects
parental order was given by the judge in the best interest or welfare of the child.
Evaluating different journal articles
In the article, Elsworth and et.al., (2015) mentioned that policy in relation to surrogacy
imposes high level of issue in front of surrogates. By doing analysis of data set author depicted
that surrogacy imposes a danger of exploitation of one individual by another on the basis of
financial interest. In the surrogacy arrangement, intended parents are also exploited by surrogates
on the basis of financial aspects. There are several surrogates in UK, who charge desirable price
in against to surrogacy. Thus, for offering protection to the parents, surrogates and children there
is a requirement to reform UK laws. By taking into account the requirements of protection
pertaining to surrogacy arrangement system of contracts and pre-birth orders has proposed by
Jessica Lee MP14. Hence, on the basis of such system, order regarding pre-birth would be made
13 X & Y (Foreign Surrogacy) [2008] EWHC 3030 (Fam). 2017. [Online]. Available through:
<http://www.familylawweek.co.uk/site.aspx?i=ed28706>.
14Elsworth, M. and et.al., 2015. Are contracts and pre-birth orders the way forward for UK
surrogacy?’ International Family Law. pp.101–96.

the Family Court. On the basis of such aspect, before the child birth ratification of such
agreement or contract is highly required by Family Court. Such proposed system or arrangement
will provide right of legal parents to the intended couple. Further, such arrangement will offer
the right of child care and thereby remove the obligations of surrogate and her spouse.
According to the views of Daisy (2013) in transitional surrogacy, surrogate mother is
considered as biological one. The rationale behind this, in this, egg of surrogate mother was
fertilized by the sperms of intended father. In India, level of transitional surrogacy is increased
with the very high pace. It makes parenthood possible for infertile couples, single men and
woman, gay as well as lesbian couple15. Through the means of artificial insemination or IVF
activities in relation to surrogacy are increased. In India, gestational surrogacy is considered as
legal because in this, surrogate mother contributes with her womb. Further, in the article,
Raymond (1993) presented that women are the victim of oppressive institution and her rights are
not adequate. Hence, evaluating such article, it has assessed that there is a lack of linkage which
takes place between sexuality, reproduction, status of women and that of children. Along with
this, article shows uncovered link which takes place between the ideologies of maternity and
femininity16. In words, it can be stated from such scholarly article that IVF and surrogate
pregnancies are recognized as an exploitation of women. On the basis of such aspect, women
and their bodies are becoming the prone of medical violence, unsafe, experimental and
demeaning process. In addition to this, findings show that unsafe contraceptive drugs and
implants are resulted into feticide of female embryos. Further, due to the increasing surrogacy
level, issues pertaining to trafficking in surrogates are increasing.
From assessment, it has found that, in New Jersey, a couple hired a woman for the
purpose of baby. In this regard, court declared that surrogacy contract is invalid on the basis of
the aspect that there are some things that can’t be bought through money. As per the laws of
15Daisy, D., 2013. Transnational surrogacy in India. Frontiers: A Journal of Women Studies.
(34).pp.167–88.
16Raymond, G, J., 1993.Women as Wombs: Reproductive Technologies and the Battle over
Women’s Freedom. HarperCollins: New York.