Is Surrogacy Ethically Constrained? Should Surrogacy be Legally Enforcable?

I recently read these articles and they made me think about how surrogacy operates and the risks associated with it. So I thought a post was needed. In answer to the questions above I will state my own personal views. I believe that surrogacy is ethical constrained. By this I mean that someone who enters into a surrogacy agreement should be held morally accountable for that decision and for breaking it. Moreover I believe that the only way to ensure that breaches of surrogacy agreements are going to be penalised is through the law. Equally if you agree to pay someone to carry your child you have a responsibility to the surrogate to help them and take their interests into account. Thus surrogacy is morally bounded and should be legally recognised and enforced.

I will focus on the legal side of this discussion, perhaps someone else would like to comment on the ethical issues. Although I would like to say that I believe it is morally reprehensible to agree to provide a childless couple with a child, only to renege and keep a child that the surrogate otherwise would never have had.

So why should the law enforce surrogacy agreements? I think surrogacy should be legally enforced because failure to do so leaves an entire crucial area of people lives completely unprotected and safeguarded. As the two articles above demonstrate breaches can be caused by either party. Both should be equally protected and penalised by the law in the event of a breach. This is because surrogacy should be treated as a legally recognised and accepted form of family creation. Moreover such a step would force the UK’s legal system to clarify the situation for families that use reproductive technology.

It would also create a higher degree of certainty for prospective parents and for the future child, at least in terms inheritance, custody, legal powers and so on. It would also forearm agreement makers and make clear the fundamental basis of the relationship between the parents and the surrogate. The increased certainty would also allow people and the state to tackle head on the issues that arise, such as surrogates forming a bond with the child such that they want to keep it or parents absconding without meetings the needs and obligations they have to surrogate. Either way I believe that leaving surrogacy so far out in the cold is benefiting no one, and causing far more harm by leaving so little guidance for all parties involved.

Sam Walker (PhD Student)


6 thoughts on “Is Surrogacy Ethically Constrained? Should Surrogacy be Legally Enforcable?

  1. Hi, Sam.

    This is an interesting and provocative post. I’m particularly interested that you would not just see the contract enforced, but would also penalise the party who has breached it.

    I take it this would be through criminalisation (?), and just wonder if that’s not taking the law too far, even if your readers accept that the original agreement itself should be resepected?

    • Hi John,

      Thanks for your comment. When I was speaking of penalising a party I had in mind a financial penalty only. But it made me think, if we enforce the surrogacy arrangement then we may end up in situation where the surrogate does not hand over the child in which case, if the parents are already legally acknowledged, it could perhaps end up being a case of kidnapping.

      Perhaps we could restrict surrogacy to contract law only. I do not think this is likely however as surrogacy could almost certainly engage some ECHR rights. I think that criminalisation is too far. A better situation may be that the law recognise the agreement, but the status of those involved in relation to the child does not carry legal force until after the child’s birth. Up until that point the contract would carry the legal force and determine the role of each party.

      I would be interested to know if you think/agree that surrogacy agreements should be legally enforced in some manner?

      • Hi, Sam.

        Frankly, I don’t have the experience or expertise on this to make my thoughts worth much at all.

        I guess on the idea of a fine, I’m not sure it would do much good. Prospectively, I can’t believe the threat of a fine would be what makes people stick to the agreement, and I see no benefit in imposing a penalty afterwards: it just seems to be a bit of extra misery in an already horrid situation.

        As for any sort of legal enforcement – as I say, I don’t know enough to have a view worth stating. As your post makes clear, it’s a complex and difficult area for regulation.

  2. Thanks John.

    Its an important point you make regarding a financial penalty. If it would be ineffective then that would only the criminal law which may be an extreme response.

    Perhaps simply guaranteeing custody of the child and full legal recognition of the parents and preventing the surrogate from breaking the agreement in this sense would be sufficient. But perhaps it would not be enough.

    Either way I think the legal recongition of the parents over the surrogate is a minimum and necessary step.

  3. Hi Sam,

    This is an incredibly interesting post although despite my ignorance on issues surrounding surrogacy I’m not sure I agree with you regarding the idea that we should make surrogacy contracts legally enforceable or penalise those who renege on them. For, whilst I understand your motivation – to prevent the heartache that occurs when surrogacy arrangements go awry: due to fraudulent behaviour on the part of the surrogate, when a surrogate wishes to keep the child she has carried for 9 months or when the commissioning couple renege on the duties set out in the arrangement made between them and the surrogate perhaps due to foetal disability, and to set out some clear guidelines for such arrangements – I wonder whether legal enforcement is really the right way to go and I shall attempt to set out my concerns below.

    Firstly I have issues with your use of the term “parent” as obviously there are at least 3 ways in which persons can be a “parent” to a child: they can be a genetic parents (neither the surrogate or the commissioning couple is necessarily this), gestational parents (in the case of surrogacy the surrogate obviously gets this title),or social parents (surrogates, commissioning couples, adopted parents and sometimes the state). In common parlance of course, when one talks of parents one is normally talking of social parents: those who raised you, fed you, clothed you and dealt with bloody knees etc and I assume that this is the type of parent you are speaking of but I don’t really see why, in commissioning a pregnancy, the commissioners should automatically be given the status of social parents before the job of social parenting has even begun.

    The strongest of my concerns however revolves around your apparent view of the surrogate’s job as just that of a foetal container. For, whilst it is true that she has offered to gestate a child for a couple and thus has partly defined herself as such I dislike for example how in your response to John you mention the legal recognition of parents “over” a surrogate, as if the commissioning couple (or single person) have more right to the child than the surrogate. This to me seems patently untrue. I wonder thus whether you think this only in cases of commercial gestational surrogacy or whether you would hold the same views regarding “altruistic” surrogacy or indeed traditional “full” surrogacy in which the child produced is genetically related to the surrogate? In the cases of altruistic and full surrogacy I also wonder whether the duty not to renege on a surrogacy agreement is slightly weaker on the part of the surrogate than it is on the part of the potential parents. For whilst the potential parents might be responsible for actually bringing the child into the world and thus the ultimate cause of its genesis, meaning they have an obligation to provide for that child, pregnancy occurs within the surrogate’s body, couldn’t occur without her, and the relationship between her and the child she is carrying is of the most intimate kind possible as well as lasting for 9 months and as such there may be issues of consent here that could thwart attempts to draw up any meaningful kind of contract. Can a surrogate, for example, truly know what she is signing up for when she offers to carry a baby for another couple unless she has engaged in the same act before? I’m not convinced that she can.

    Perhaps the best solution to this problem is little more than a requirement of counselling for all parties concerned: to inform them of what may go wrong, that surrogacy contracts are not legally binding and that as such, in the case of commercial surrogacy (which is still illegal in the UK) and pregnancy expenses in altruistic surrogacy, if money is to be changing hands it can constitute nothing more than a gift during pregnancy and should thus ideally occur after the pregnancy is ended. Perhaps regarding expenses a partial solution would be some form of third party who initially pays the expenses and then recoups them along with a fee from the legal parents after birth?

    The perfection of ectogenesis can’t come soon enough, right?


    • Hi Nicola,

      Thanks for your post. If I have read it correctly to your two concerns are:
      A) the identity of the parents is unclear, and possibly includes all the parties to a surrogacy agreement, and
      B) that the surrogate is more than someone who carries a baby for others.

      To your first point. You are right that I was using parents to refer to what you call the social parents. This was intentional on my part, both to provoke discussion and because I believe that they are the parents.

      While other make it possible for them to be parents, and may feel some connection to the child, the ‘social’ parents are the ones who bring the child into existence. But for their actions that child would not exist. If the surrogate was different, and the embryo was genetically from the parents, then it would not stop the development of that child. I agree this may be more difficult if the surrogate is genetically related to the child. In which case it should not be permitted to be a surrogate for a child you are genetically related to.

      To your second point. I disagree that it is incorrect to see the surrogate as gestational container as that is sole purpose to which they are a surrogate. Unless it is part of the initial agreement why should the surrogate be able to unilaterally alter/breach the agreement even for a strong emotional reason?

      Unless there is mutual agreement to change the agreement the rights of the parents, whose actions have produced this child, should be maintained. This should apply both to monetary and altruistic agreements.

      I agree that counselling may be useful to find suitable surrogates, perhaps only women who have been pregnant should be allowed, but I think it would be insufficient.

      As for ectogenesis, the sooner the better.

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