SURROGACY: ‘A CAUTIONARY TALE’

Abstract

Despite the recent press coverage surrogacy has received as a consequence of high profile celebrities such as Elton John,2 Sarah Jessica Parker,3 and Nicole Kidman4 using surrogates to attain parenthood, it is by no means a new phenomenon.5 While the controversial practice of surrogacy in the 1980s was condemned by Warnock as ‘totally ethically unacceptable’,6 in the present case of Re T Baker J noted how ‘in recent years the practice of surrogacy – whereby a woman gives birth to a child for others – has been accepted as a method of enabling childless couples to experience the joy and fulfilment of parenthood’.7 Yet despite this modern day acceptance of surrogacy, this method of attaining parenthood remains regulated in the UK primarily by the Surrogacy Arrangements Act 1985—a piece of legislation drafted at a time when there was much hostility to the practice.8 Despite later piecemeal amendments made by the Human Fertilisation and Embryology Act 1990 and 2008, the law regulating surrogacy has been aptly described as ‘confused, incoherent, and poorly adapted to the specific realities of the practice’.9 It offers little protection to either the commissioning couple or the surrogate. The case of Re T demonstrates some of the pitfalls of the present legislation and acts as a cautionary tale for those who resort to making their own informal surrogacy arrangements.