Maternal Surrogate Clinics (Hansard, 31 January 1984)

§ Mrs. Anna McCurley (Renfrew, West and Inverclyde)

I beg to move, That leave be given to bring in a Bill to prohibit the operation of maternal surrogate clinics in the United Kingdom. Maternal surrogacy has been with us since biblical days, so I do not seek to explore the nature of the principle but rather to examine the effects of one practice. I am aware that the Warnock committee will report some time this year on matters relating to artificial insemination by donor, in vitro fertilisation techniques and surrogacy, and that there will be a full and well-informed debate thereafter, possibly leading to legislative action on a variety of issues. It is of great concern to me, however. that in the intervening time between discussion and action several abuses may occur which will be contrary to the spirit of the law as it stands, which will consciously seek to circumvent the law and which will be rejected by the vast majority of people.

I was alerted by an article in The Mail on Sunday to the possibility of maternal surrogate clinics being established in this country. They are already a feature of life in some states of the United States of America — other states have abandoned them—and in the Federal Republic of Germany. Those clinics bring together on a highly commercial basis infertile couples desiring a child and women, usually in their mid-twenties, who are married and have borne at least one child from their union, who lease their uterus and ovum for artificial insemination by the male partner of the infertile couple. If a child is born subsequently, it is handed over to the couple by the surrogate within 48 hours of delivery.

Assurances regarding selection and counselling of the contracting parties have been given by those who are already in this practice, but there is no legislative control over who should select and advise — for example, no medical qualifications are required. In effect, anyone can start such an operation in this country. I believe that the average cost of a baby born because of this practice is about £16,000, which includes the surrogate fee and private clinic facilities. Existing legislation would appear to have banned the buying and selling of children for profit. The Adoption Act 1958 strictly forbids any money changing hands in adoption placements. The agent or clinic dealing with the contracting parties — the prospective purchasing parents and the surrogate mother —must be approved by the DHSS.

It should be made clear that the only way that prospective purchasing parents can take on full legal responsibility for the child is by adoption. The woman who carries and gives birth to a child is legally the mother, and she has full responsibility for the child. If she is married, there is a legal presumption that her husband is the father of the child, with legal responsibilities, unless paternity is brought into question; then the burden of proof lies with the man. The sperm donor has no legal rights over the child. The child is illegitimate as surely as is a child born of an illicit or adulterous relationship. The child then must be adopted by the paying couple.

154 The Law Society is of the opinion that any contract between purchasing couples and surrogate mothers would be null and void because it would be contrary to public policy and unenforceable in the courts, but there has been no legal test case on which we can draw for reassurance. Cases on this issue in the United States of America have been brought to court, but not as yet where any payment has been involved.

Loopholes in the law must be tightened. Is this action the provision of a service or the sale of a child? Offering one's body in such a service invites comparisons with parallel illegal acts. If we do not act swiftly on this issue. children may be born by this method before the law takes account of them.

I am sympathetic to anyone so desperate that he or she would do anything to have a child. On this issue, however, I have support from the churches, the WI, many nurses, doctors, lawyers and colleagues. I do not presume to speak specifically for those bodies that have reported to the Warnock committee. Those who counsel the childless have offered their support also. I wish to voice the anxieties that have been expressed about the welfare of the child — for example, about one who had been born handicapped. Would the contract stand or would the child be rejected? Would it become the responsibility of the State?

Consider the surrogate's mental state after birth, her husband's rights and feelings, the possible problems for the infertile adopting mother— remembering that the child is not biologically hers but is biologically her husband's—the threat to family life and pair bonding, call it what we will.

Scientific developments should not always be equated with progress. In this field, we have knowledge but no control and no guidelines. There is a danger of the unscrupulous as well as the well-meaning operator cashing in on the delicate, highly personal emotions of unhappy people. I have heard this practice called the greatest gift one person can bestow upon another and a supreme act of charity but, alas, that charity is available not to the poor, who also want children, but to those with the ability to pay. The Bill will discourage those who are active in trying to establish such clinics in the United Kingdom. Swift action is the only course open to us to prevent conditions developing that would be maze-like in their legal complexities and, potentially, socially explosive