Surrogacy is legal, ‘baby-buying’ is not

The case concerning baby Gammy in Thailand has brought surrogacy into the limelight, says Jennifer Gallagher

Gammy, the son born to Thai surrogate mother Pattaramon Chanbua in Bangkok has raised many questions. Picture: Getty

THE case of Baby Gammy, born through a surrogate mother in Thailand to an Australian couple and then allegedly abandoned by them, has opened up a huge discussion about the rights and wrongs of surrogacy.

Here in the UK, commercial surrogacy is against the law, which takes in advertising for a woman to act as a surrogate or for a female to offer her services in that capacity.

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Nevertheless, it is legal in this country to use a surrogate mother to have a baby but only if any money that changes hands is to cover the surrogate’s reasonable expenses – such as the cost of maternity clothing and travel or wages lost through pregnancy. There is not supposed to be any profit element for the surrogate and definitely no “baby buying” by the intended parents.

Not surprisingly, however, many people wonder why a woman might want to act as a surrogate, go through a pregnancy and give birth to a baby for someone else – particularly a stranger – simply through the goodness of her heart.

There is widespread cynicism that some surrogate mothers must be prompted by more than simple altruism and a desire to help a childless couple realise their dream of being parents.

While the jury may be out on that question, the bottom line is that there is no such thing as a legally binding agreement covering surrogacy in the UK, so the intended parents who embark on this process will always run the risk that the surrogate will refuse to give up the baby after he or she is born.

The surrogate is legally the mother of the baby and if she is married, her husband is presumed to be the baby’s father regardless of the biological connections to the other party in the arrangement.

The intended parents only acquire legal rights and responsibilities in relation to the baby by way of a court order, called a “parental order”. To get an order, the couple must apply within six months of the child being born, the child must be living with the intended parents at the time of the order and the surrogate must provide consent.

There are many complications surrounding the issue, hence the reason for Surrogacy UK, a not-for-profit organisation set up to offer both prospective surrogates and intended parents information, help and support. The organisation’s website contains many real life stories from both surrogates and intended parents explaining why they decided to choose this route to parenthood.

So there are safeguards in place to prevent a well-heeled couple “buying” a baby, though no-one knows for certain whether ‘“under the legal radar” surrogacy deals take place.

The international scene is different and in some jurisdictions, murky practices are followed. Among the jurisdictions where surrogacy is well-established and the legal rules clear is California. Surrogacy agreements are accepted and additional legislation passed in 2013 sets out additional protections for both the surrogate and intended parents.

All parties to the agreement must have separate legal advice and the agreement has to be signed and notarised with declarations by all concerned that the law has been complied with before any fertility treatment begins. If the law has been complied with, the agreement is presumed to be valid.

If couples resident in the UK decide to go through an international surrogacy arrangement, they will still need to apply for a parental order to obtain legal rights in relation to the baby in this country although the foreign court may recognise a legally binding surrogacy agreement which forces the surrogate to hand over the baby even if she has had second thoughts following the birth.

The court must approve any financial arrangements and will be careful to consider whether the surrogate has been exploited or overwhelmed by a generous premium being paid for the baby.

The main issue in granting one of these orders is the welfare of the child and in most cases granting the order is likely to be preferred to leaving a baby stateless and unwanted by a surrogate mother in a foreign land.

Many, however, do see a basic unsavouriness to the idea that a wealthy couple from the first world might go to a third world country and effectively buy a baby. The story of Gammy, born in Bangkok to a Thai mother paid by an Australian couple, has brought that into sharp focus.

There are disputed versions of Gammy’s story, but whichever is correct, the commercial transaction elements of all of this seem to take precedence over the rights and welfare of a little boy brought into the world at this couple’s request. Whatever its imperfections, UK law on the matter seems to be superior to that of many other countries.

• Jennifer Gallagher is a partner with Blackadders, Dundee