Commercial surrogacy arrangements – within or without the law?
1 May 2020
In the latest episode of Law Pod UK, Rosalind English talks to William Edis QC of 1 Crown Office Row about the recent Supreme Court ruling on whether damages can be claimed against the NHS in respect of a commercial surrogacy arrangement in California, following the admitted negligence of a hospital in the UK rendering the respondent unable to bear a child. See Bill’s post on that ruling here.
Commercial surrogacy agreements – that is where the surrogate makes a profit for bearing the commissioning mother’s child – are against the law in this country. But it is not illegal to travel, so those with the means to do so can go to another jurisdiction where such arrangements are common practice. An interesting legal conundrum arose where a woman sought damages for such an arranged surrogacy in the States where a UK hospital, by its own admitted negligence, had rendered her unable to have a child. Here are the relevant laws and cases referred to in the podcast episode:
Surrogacy Arrangements Act 1985
Human Fertilisation and Embryology Act 1990, section 27; Human Fertilisation and Embryology Act 2008, section 33
XX v Whittington Hospital NHS Trust [2018] EWCA Civ 2832
Whittington Hospital NHS Trust (Appellant) v XX (Respondent) [2020] UKSC 14
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I think surrogacy should only be commercial. Let the professionals do their job – doctors, experienced surrogate mothers. Altruistic surrogacy is a dangerous. Starting with the hidden diseases of the surrogate mother and ending with the fact that she will run away with the child. As for me, it is better to use the services of proven surrogate mothers through some clinic than to take risks. To begin with, we chose the clinic, it was the Ukrainian clinic Feskov Human Reproduction Group. Here’s their website. https://www.mother-surrogate.com
Then, we were given access to the database of their surmas, we watched photos, questionnaires, chose. The clinic guarantees physical and psychological health of every mother. There are very good programs with a guarantee of childbirth, you can even a choose sex. Then we went to Kharkiv, signed a contract, got acquainted with the chosen surrogate mother, we liked it very much! We entered the protocol. And now the child is almost six months! I wish to everyone good luck and healthy babies))