Legal and ethical issues are the less exciting, but a very important part of surrogacy. I thought this would be a very dry article until my recent experience. Despite my research I was in for a surprise.
‘Legals’ as they are known, underpin any surrogacy process and UK law is restrictive. They cover everything from the payment of money to birth certificate names and legal rights. Implications can include a criminal record. At one end of the scale of ‘success’ you will find: a gay celebrity who has found a friendly lesbian, a clinic and co-parenting arrangements which seem very snug. At the other end are horror stories such as an everyday gay man having no access rights and having to pay maintenance for a child they will never see. This makes surrogacy in the UK decidedly unreliable. When dealing with bringing a child into this world, not to mention the money involved, for me, the more certainty the better.
So the ‘legals’ are important. It also brings into stark contrast where to look outside the UK: Ukraine is still a country with a subdued war zone, Thailand has just banned gay couples using surrogacy, Mexico has poor regulation, and places such as Russia and Georgia have very grey areas legally. The question isn’t so much what’s written in law, as what can be enforced and by whom?
People’s actions are governed by the perceived consequences of their actions, rather than what is written in law.
A second issue that is closely linked is ethics. So often it will be a culture’s ethical perceptions which are then interpreted into law. For example, who is ‘mum’ and if/what role does ‘mum’ play in a child’s upbringing? How important is it to have a female involved in child care? At one end of the childcare scale, you can point to studies which show that actually childcare is about time and attention given. Two men can be more capable than a heterosexual couple because they may give more time and attention to the child(ren). At the other end of the scale are the views of an everyday person based on their own experience (dad worked and mum raised the kids). We are all still influenced by our cultural history as this forms part of our identity. To break this is to go against the cultural mould, that is, to be an outsider. In the UK out gay men are used to being outsiders, but this takes it to a whole new level. This type of ‘outside’ is also where casual bigotry and sexism creep in.
A gay couple I know went to a children’s party with their kids. A friendly mum was chatting to one and then said hello to the other. She began by asking dad #2 who he was. He said he was dad as well. Embarrassed silence followed when she realised what the situation was. (This was a kid’s party in trendy south-east London. Imagine what it’s like somewhere a little less cosmopolitan?) In this respect for me, there is some relief, as I won’t have to explain who I am. ‘Mum’ will forever be, ‘in America’.
Further ethical considerations include the implications for the surrogate. Emotional attachment has long been an issue. For example, a cardinal rule is not to let the surrogate breast feed directly. Breast feeding releases a hormone which binds a child to the milk giver. As a result because of this and similar issues, if you want to have a female who is both surrogate and egg donor you have to go to remote locations. The stark realisation that there are two females involved in surrogacy seemed surprising to the gay friends I’ve told. This means that ‘mum’ will be two people, a genetic mother and a birth mother. It makes it more clinical and easier to handle emotionally, but then you start to question the motivations of those involved. It usually links back to money and once money is involved, then it is legal enforcement, not what is written that is so important. Find yourself in a clinic in Russia where a genetic surrogate wants to keep the baby and disappears, and you can imagine the implications.
For this reason, evidence of lengthy ongoing practice (say over five or ten years) plus a legal framework which has been tried and tested in a culture which is sympathetic is very important. If you perform this ‘test’, it should be applied to both the culture, its regulatory framework and also to the fertility clinic, surrogacy agency and law firm. Remember, it only matters if enforcement has to be taken, but who will have your back and how, if enforcement is taken?
As a result I opted for the United States. It is the most expensive choice, but has a strong and experienced regulatory framework in the states of California and Nevada. Despite this, there are still issues. The concern is no longer ethical issues, but enforcement issues.
When I bought my legals, I bought an ‘unlimited’ package from a law firm in the United States, as part of my overall deal. This provided advice and a legally enforceable contract, not pro-active negotiation or litigation. This came to be significant, eight months after signing up to the surrogacy deal. We were at the stage of drawing up the surrogate’s contract, based on agreed terms. It was adjusted by me and sent to my surrogate. A week before the deadline, the contract returned. My surrogate, the lovely lady I met in the states, wanted more money.
Another agency had approached her, offering more. A recent scandal saw a surrogacy agency go under taking their surrogates’ money.
My surrogate wanted more money plus a buffer of $10,000 in the escrow account. Suddenly my bill had increased by $20,000, just a week before we were due to exchange contracts.
My law firm effectively washed their hands and said ‘just accept it’. There was no attempt to fight my corner. If at this stage, they weren’t fighting my corner, then what happens if we get into contract enforcement? All of the surrogacy agency’s talk of ‘doing it for a good cause’ washed away.
I questioned if I could trust my surrogate. Also, as my father said, “you understand a law firm once the going gets tough” -and mine couldn’t run fast enough. In the end I negotiated with my surrogate. I agreed to some increases, and we signed a contract. To really add to my issues, my law firm got my surrogate to sign a different copy of the contract to the one I had notarised. We have yet to resolve this. I now have two surrogate contracts each with different signed parties. Enforcement could be an issue.
The US maybe more regulated but the issues are subtler. Good strong communication by all parties is needed.
Next time I’ll look at: how you choose the agencies involved, the egg donor, and surrogate. Who do you pick and why? Please also help me to raise funds, any contribution is gratefully received: http://www.gofundme.com/simonhill
A dad to be on the journey to parenthood
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