University of Otago Law Festschrifts
Last Updated: 31 May 2019
11 GENES VERSUS GESTATION: PROTECTING THE
INTERESTS OF SURROGATE MOTHERS
Mark Henaghan,* Ruth Ballantyne** & Devon Helm***
Professor Peter Skegg, who is rightly recognised as the father of medical law in New Zealand, has developed a long and distinguished career evaluating how the law prioritises different legal interests in complex medical situations.1 This area of law owes a significant debt to Skegg for the scholarly and articulate way his considerable body of work reveals the intricate layers of analysis behind individual medical decisions. According to Skegg, prioritising between different legal interests should be based on defensible ethical principles and be consistent across similar legal contexts. There are no perfect answers to such questions, but this should not prevent the adoption of a particular legal position.2
Using Skegg’s ethical approach to prioritising different legal interests, this chapter focuses on the legal interests of gestational surrogate mothers as opposed to the interests of commissioning genetic parents. This chapter argues that a surrogacy arrangement should not lessen or undermine a gestational surrogate mother’s position as the legal mother of the child. Much of the writing on surrogacy revolves around the interests of commissioning parents (particularly where there is a genetic connection between the child and one or more of the commissioning parents) and the difficulties they face in obtaining legal parentage of the resulting child.3 This is understandable, as the primary purpose of surrogacy is to provide
* Dean and Professor of Law, Faculty of Law, University of Otago, Dunedin,
** Professional Practice Fellow, Faculty of Law, University of Otago, Dunedin, New Zealand.
*** Summer Research Scholar, Faculty of Law, University of Otago, Dunedin, New Zealand.
the commissioning genetic parents with a child. However, this chapter argues that the gestational surrogate mother is extremely vulnerable throughout her pregnancy, as well as during and after the birth process, and that her interests during this time should be given priority over those of the commissioning genetic parents. This approach is also consistent with one of the key principles of reproductive justice, which is “to bring the people made most vulnerable by issues and technologies to the centre of debate”.4 The chapter begins with an analysis of the current New Zealand and international approaches to surrogacy, followed by an examination of the role of surrogate mothers, informed consent, and the vulnerabilities of gestational surrogate mothers. The chapter concludes with some suggestions about what an international surrogacy convention based on the interests of the gestational surrogate mother might look like.
The family is widely recognised as the “natural and fundamental group unit of society”.5 In the quest to form this “powerful and enduring basis of human attachment”, couples struggling to conceive are increasingly benefitting from advancements in assisted human reproduction technologies.6 Gestational surrogacy arrangements tend to be favoured by many commissioning parents over alternatives such as adoption, as the former enables one or both of them to have genetic ties to the resulting child. At a rudimentary level, a surrogacy arrangement can be described as a contract for services between the parties involved. The commissioning parents (with the aid of fertility agencies and related third parties) provide their genetic material to the surrogate, who then executes the transaction by carrying the child until birth. In situations involving altruistic surrogacy, commissioning parents will pay for the surrogate’s reasonable expenses (usually medical expenses and legal costs) in exchange for the surrogate’s reproductive labour. In jurisdictions where commercial surrogacy is permitted, commissioning parents will also compensate the surrogate mother for her time and effort (which often includes loss of wages) and other expenses.7
4 Andrea Whittaker “Merit and Money: The Situated Ethics of Transnational Commercial
Surrogacy in Thailand” (2014) 7(2) International Journal of Feminist Approaches to Bioethics 100 at 115. See also Zakiya Luna and Kristin Luker “Reproductive Justice” (2013) 9(1) Annual Review of Law and Social Science 327 at 344-345.
7 Being a surrogate mother can be extremely lucrative depending where the surrogate
After the child is born, commissioning parents claim an entitlement to the resultant child on the basis of their genetic connection to the child and the parties’ relevant intentions. Commissioning parents seeking to assert their parental status emphasise the absence of a genetic connection between the gestational surrogate mother and the child and claim that, but for the commissioning parents’ intention to exercise their familial rights (through the initiation of the surrogacy arrangement), the child would not have been born.8 Most gestational surrogate mothers relinquish the child they have carried to the commissioning parents when the child is born as agreed between the parties and then the commissioning parents adopt the child to gain legal parentage status. However, some surrogate mothers change their minds and decide to keep the child they have carried.
Countries around the world have developed different rules and guidelines to help those involved in surrogacy arrangements traverse the complex path that surrogacy involves (especially surrogacies involving an international dimension). These different rules and guidelines are explored in more depth in the following two sections.
2. THE NEW ZEALAND APPROACH TO SURROGACY ARRANGEMENTS
2.1 The Current Legal Landscape
The Human Assisted Reproductive Technology Act 2004 (the HART Act) was enacted to provide a comprehensive regulatory framework governing assisted human reproductive (AHR) procedures. As such, it is the only statute that
mother lives. For example, in California a surrogate mother will usually be paid between $US30,000 to $US50,000. See Modern Family Surrogacy Centre “Surrogate FAQs” <www. modernfamilysurrogacy.com>. However, a surrogate mother in India may only be paid between US$6,000 to US$10,000 for undertaking the same task. See Sreeja Jaiswal “Commercial Surrogacy in India: An Ethical Assessment of Existing Legal Scenario from the Perspective of Women’s Autonomy and Reproductive Rights” (2012) 16(1) Gender, Technology and Development 1 at 4.
The right to found a family is recognised in art 16 of the Universal Declaration of Human Rights and art 23(2) of the International Covenant on Civil and Political Rights, both of which have been adopted and ratified by New Zealand. John Tobin argues that if the right to “family life encompasses a right to enter surrogacy arrangements, this right remains subject to a State’s capacity (and potential obligation) to restrict this where it is reasonably necessary to (a) protect the rights of persons other than the intending parents and/or (b) protect public morality”: John Tobin “To Prohibit or Permit: What is the (Human) Rights Response to the Practice of International Commercial Surrogacy?” (2014) 63(2) International and Comparative Law Quarterly 317 at 325.
specifically mentions the term “surrogacy arrangement”.9 Under s 14(1) of the HART Act, a surrogacy arrangement is not in itself illegal in New Zealand but will be unenforceable by or against any person. However, s 14(3) of the Act explicitly prohibits arrangements of a commercial nature by making it an offence to give or receive valuable consideration (beyond “reasonable expenses”) for participation in a surrogacy arrangement. Though the HART Act clearly contemplates the occurrence of surrogacy, it does not provide guidance on the recognition of parental status following the child’s birth. Section 4(c) of the HART Act does acknowledge the important role of women in AHR procedures and prioritises their health, stating:
... while all persons are affected by assisted reproductive procedures and established procedures, women, more than men, are directly and significantly affected by their application, and the health and well-being of women must be protected in the use of these procedures.
The statement that “the health and well-being of women must be protected” ensures that it is mandatory to consider the interests of surrogate mothers in AHR procedures and shows that the legislation has prioritised their interests above all others. This is demonstrated by the fact that all of the other principles listed in s 4
of the HART Act use the word “should” rather than “must”.10
9 Section 5 of the Human Assisted Reproductive Technology Act 2004 defines a surrogacy
arrangement as “an arrangement under which a woman agrees to become pregnant for the purpose of surrendering custody of a child born as a result of the pregnancy”.
10 Section 4 of the Human Assisted Reproductive Technology Act 2004 provides the following principles:
(a) the health and well-being of children born as a result of the performance of an assisted reproductive procedure or an established procedure should be an important consideration in all decisions about that procedure:
(a) the human health, safety, and dignity of present and future generations should be preserved and promoted:
(a) while all persons are affected by assisted reproductive procedures and established procedures, women, more than men, are directly and significantly affected by their application, and the health and well-being of women must be protected in the use of these procedures:
(a) no assisted reproductive procedure should be performed on an individual and no human reproductive research should be conducted on an individual unless the individual has made an informed choice and given informed consent:
(a) donor offspring should be made aware of their genetic origins and be able to access information about those origins:
(a) the needs, values, and beliefs of Māori should be considered and treated with respect:
(a) the different ethical, spiritual, and cultural perspectives in society should be considered and treated with respect. Note that the only principle expressed as a mandatory consideration (as evidenced by the
Part 2 of the Status of Children Act 1969 was inserted in 2005 to “remove uncertainty about the status of children conceived as a result of AHR procedures”.11 According to s 17, the surrogate mother is always deemed to be the legal mother of any child she carries and gives birth to, regardless of any biological connection to the child, or where the arrangement takes place.12 By making gestation the precondition for legal motherhood, the effect of this provision is therefore to immaterialise the commissioning parents’ choice in surrogacy arrangements to create an embryo using their own genetic material. Section 18 of the Status of Children Act 1969 further exemplifies this fact by granting paternity rights to the non-donor partner of the surrogate provided they have consented to the procedure. These provisions were introduced to protect the parental rights of those who use in vitro fertilisation (IVF) with embryos created as a result of donor sperm or ovum. It was also designed to ensure that sperm and ovum donors have no legal responsibility for any resultant child, except in limited circumstances where a donor is in a relationship with one of the commissioning parents of the child.13
For the commissioning parents to achieve legal parental status, they must apply to the Family Court for an adoption order pursuant to the Adoption Act 1955. Before granting an interim or final order, the Court must be satisfied that the legal parents have consented to the adoption,14 and that a report from a social worker has been obtained in regards to the application.15 In the case of cross-border surrogacy, the Adoption (Intercountry) Act 1997 is likely to apply where the child is “habitually resident” in another country that is a Contracting State to the 1993 Hague Convention.16
In conferring legal parentage on the gestational surrogate mother, some argue that the Status of Children Act 1969 “confers parentage on unintended parents
use of the word “must”) is s 4(c) of the Human Assisted
Reproductive Technology Act 2004, which is about protecting women
procedures. All the other principles merely use the aspirational word
11 Status of Children Act 1969, s 13.
12 Section 16(2) of the Status of Children Act 1969 states that ss 17-22
apply “whether or not the child was born in New Zealand”.
13 See Status of Children Act, ss 19-24.
14 Adoption Act 1955, s 7. Under s 8, the consent requirement may be
dispensed with in certain circumstances e.g. if the surrogate
has neglected the
child or is unable to care for the child through physical or mental
15 Adoption Act 1955, s 10.
16 Hague Convention of 29 May 1993 on Protection of Children and Co-operation in Respect of Intercountry Adoption.
and relegates the planned parents to donors with no legal rights”.17 From the commissioning genetic parents’ perspective, the requirement in the Adoption Act 1955 to adopt their own biological child may be a “frustrating or even offensive step” as it does not fit within the intentions of the parties to the surrogacy arrangement.18 However, as will be discussed in the remainder of this chapter, there is rigorous debate as to the correct balancing of rights and interests in the context of surrogacy arrangements. This chapter maintains that the current New Zealand legislation is right to prioritise the interests of the gestational surrogate mother because the gestational surrogate is the most vulnerable party throughout the pregnancy and birth process and therefore the law should put her legal interests first. This approach is consistent with the way the interests of non-surrogate mothers are prioritised under the law.
2.2 Proposed Reform
In 2012, a Private Members’ Bill was introduced with the intention of reforming adoption and surrogacy laws in New Zealand. Under Green Party MP Kevin Hague’s name, the proposed Care of Children (Adoption and Surrogacy Law Reform) Amendment Bill would have significantly restructured the legislative frameworks that apply to surrogacy and adoption.19 The proposed Bill set out the:20
... requirements with which a commissioning parent or parents must comply when entering into an altruistic surrogacy arrangement, and when seeking to have that child legally recognised as being part of their family.
17 Margaret Casey “Surrogacy in New Zealand: The Current Landscape” (paper presented to the New Zealand Law Society International Adoption and Surrogacy – Family Formation in the 21st Century Conference, April 2014) 21 at 22.
18 Debra Wilson “Different Rhythms, Faster Tempos and Unsystematic Advancement: The Potential Impact of Recent European Court of Human Rights Cases on International Surrogacy and Human Rights” (2015) 8 New Zealand Family Law Journal 133 at 134. It has been suggested (by some international critics) that pre-birth parentage orders may be an appropriate response to such difficulties in some situations. See Steven Snyder and Mary Byrn “The Use of Prebirth Parentage Orders in Surrogacy Proceedings” (2005) 39 Family Law Quarterly 633. However, adopting such an approach in New Zealand would require significant legislative changes. Pre-birth parentage orders are discussed in more detail in section 3 below.
19 In 2013 Jacinda Ardern (Labour Party MP) introduced the Care of Children Law Reform Bill, but due to incompleteness, the Bill was negatived on its first reading in October 2013.
20 Proposed Care of Children (Adoption and Surrogacy Law Reform) Amendment Bill, Explanatory Note.
By amending the Status of Children Act 1969, the effect of the proposed Bill would have been to provide a prima facie presumption as to legal parenthood for commissioning parents of children born overseas whose names have been entered into the foreign birth registry of the overseas country where the child was born, or when a foreign court has made a parentage order in favour of the commissioning parents. This is a very fact specific provision that would only have applied in jurisdictions such as California that allow such procedures. The primary lobby behind this provision was genetic parents wanting their legal parenthood to be conferred as soon and as cost effectively as possible.
Under s “220(1) of the proposed Bill, altruistic surrogacy arrangements would have been permitted where both the commissioning parents and surrogate had consented to the arrangement, where the commissioning parents could prove that they were habitually resident in New Zealand, that the appropriate Ethics Committee on Assisted Reproductive Technology (ECART) guidelines had been met, and where the arrangement was not of a commercial nature. The Bill would have also extended the definition of “reasonable expenses”, the criteria distinguishing between permitted and prohibited surrogacy arrangements, to allow payment of the surrogate mother’s medical, counselling, and legal expenses, related insurance costs, and compensation for loss of income during the period of the surrogacy arrangement.21 The HART Act currently restricts such expenses to payments made to the fertility provider “for any reasonable and necessary expenses incurred” in the following procedures:22
(i) collecting, storing, transporting, or using a human embryo or human gamete:
(i) counselling 1 or more parties in relation to the surrogacy agreement:
(i) insemination or in vitro fertilisation:
(i) ovulation or pregnancy tests.
Commissioning parents are also currently permitted to pay “a legal adviser for independent legal advice to the woman who is, or who might become, pregnant under the surrogacy arrangement”.23 However, the HART Act does not currently allow a surrogate mother to be paid for her loss of income during the period of the surrogacy.
21 Proposed Care of Children (Adoption and Surrogacy Law Reform) Amendment
Bill, ss “220(2) and “220(3).
22 Human Assisted Reproductive Technology Act 2004, s 14(4)(a).
23 Human Assisted Reproductive Technology Act 2004, s 14(4)(b).
Most significantly, the proposed Bill would have allowed commissioning parents (who were party to a written international altruistic surrogacy arrangement) to apply to the Court for leave to commence the pre-adoption process where the arrangement was legal in the country in which it would have taken place, where the arrangement was not repugnant to the relevant New Zealand legislation and guidelines, and where the commissioning parents were either New Zealand citizens or habitually resident in New Zealand.24 As such, the proposed Bill would have given commissioning parents the opportunity to achieve legal certainty as to parentage at an earlier possible stage of the process than what is currently prescribed. 25
The proposed Bill was withdrawn from the Members’ Ballot in July 2015 after failing to be drawn for more than two years. Recent commentators have suggested that before any legislative intervention can be made in New Zealand, a large-scale public debate may be necessary in an attempt to resolve the political differences that the topics of adoption and surrogacy generate.26 The chapter argues that regardless of whether or not new legislation is introduced in New Zealand, the time has come to create an international convention that provides a minimum degree of protection and remuneration for surrogate mothers.27
3. INTERNATIONAL APPROACHES
3.1 Post-Birth Parentage Determinations
Unlike New Zealand, some jurisdictions view a requirement for the commissioning parents to adopt “their” own child as contradictory to the purpose of the gestational surrogacy arrangement.28 In the United Kingdom (the UK), the Human Fertilisation and Embryology Act 2008 (the HFE Act) provides a mechanism for transferring parental status from the surrogate mother to the commissioning parents (the “applicants”) following the child’s birth. Before granting what is
24 Proposed Care of Children (Adoption and Surrogacy Law Reform) Amendment
Bill, s “223(1).
25 Law Commission New Issues in Legal Parenthood (NZLC, R88, 2005) at 90.
26 Dinah Kennedy “International Adoption and Surrogacy in New
Zealand” (paper presented to the New Zealand Law Society
Adoption and Surrogacy – Family Formation in the 21st Century Conference,
April 2014) 55 at 75.
27 This is discussed in more detail in section 7 below.
28 Margaret Brazier, Alastair Campbell and Susan Golombok Surrogacy: Review for Health Ministers of Current Arrangements for Payments and Regulation – Report of the Review Team (HMSO, London, 1998) at [3.12].
referred to in the legislation as a “parental order”, the Court must be satisfied of the following conditions under s 54 of the HFE Act:
The restrictive regulatory framework in the UK therefore takes some steps to preserve the surrogate mother’s rights, particularly through the requirement for consent.36 Additionally, the HFE Act aims to ensure that, by the time legal parental status is sought by the commissioning parents following the birth of the child, the surrogate mother has had time to psychologically adjust to the experience of surrogacy. To this end, a surrogate mother may not consent to the making of a parental order in favour of the commissioning parents until six weeks after the birth of the child.37 This time period gives the surrogate the time to recover from the initial emotional trauma she may face after giving birth and relinquishing the child.38
However, there is a regulatory gap in the UK regime in terms of whether surrogate mothers are provided with adequate counselling, social assistance, or independent
29 Human Fertilisation and Embryology Act 2008 (UK), s 54(1).
30 Human Fertilisation and Embryology Act 2008 (UK), s 54(5).
31 Human Fertilisation and Embryology Act 2008 (UK), s 54(2).
32 Human Fertilisation and Embryology Act 2008 (UK), s 54(3).
33 Human Fertilisation and Embryology Act 2008 (UK), s 54(4).
34 Human Fertilisation and Embryology Act 2008 (UK), s 54(6).
35 Human Fertilisation and Embryology Act 2008 (UK), s 54(8).
36 Jennifer Wademan “Around the World in 40 Minutes: Worldwide Approaches to International Surrogacy” (paper presented to the New Zealand Law Society International Adoption and
Surrogacy – Family Formation in the 21st Century Conference, April 2014) 127 at 129.
37 Human Fertilisation and Embryology Act 2008 (UK), s 54(7).
38 If she does in fact suffer emotional trauma as a result of the surrogacy process. See the discussion of the experiences of surrogate mothers in section 4 below.
legal advice as part of making their surrogacy arrangements.39 The emphasis in the UK legislation has been to simplify and ease the transfer of legal parenthood for commissioning genetic parents, rather than to protect the interests of surrogate mothers.
In Australia, surrogacy laws are state-based and not uniform across the country.40 However, most states have adopted a similar regulatory approach to the UK and allow commissioning parents to apply to the Court for a “parentage order”, which transfers parental status from the surrogate mother to the commissioning parents without the need for adoption.41 In international surrogacy cases, where jurisdictional requirements for a parentage order will often not be met,42 Australian commissioning parents can instead turn to the parenting order and adoption provisions contained in the Family Law Act 1975 to have their legal parentage established by the Court.
3.2 Pre-Birth Parentage Determinations
Pre-birth parentage orders allow commissioning parents to be legally recognised as the child’s parents prior to the birth of the child. There are several advantages to this approach for the commissioning parents, especially in terms of the certainty provided by the order. Pre-birth parentage orders allow commissioning parents “immediate and sole access to and control over the child and its postnatal care and medical treatment when it is born”.43 Such an order also allows the commissioning parents’ names to go onto the resultant child’s birth certificate immediately upon the birth of the child.44 It also allows the commissioning parents “to participate in the delivery and hospital experience as much like the natural delivery of their own child as possible”.45 However, the advantages for commissioning parents’ come at
39 Claire Fenton-Glynn “Outsourcing Ethical Dilemmas: Regulating International Surrogacy Arrangements” (2016) 24(1) Medical Law Review 59 at 69.
40 Karin Hammarberg, Martyn Stafford-Bell, and Sam Everingham “Intended Parents’ Motivations and Information and Support Needs When Seeking Extraterritorial Compensated Surrogacy” (2015) 31(5) Reproductive Biomedicine Online 689 at 690.
41 Wademan, above n 36, at 128-129, citing s 29 of the Parentage Act 2004 (ACT), s 39 of the Surrogacy Act 2010 (NSW), s 39(2) of the Surrogacy Act 2010 (Qld), s 10HB(13) of the Family Relationships Act 1975 (SA), s 26(1) of the Surrogacy Act 2012 (Tas), and s 26(1) of the Surrogacy Act 2008 (WA).
42 Common requirements for a parentage order across state surrogacy
legislation include an arrangement of an altruistic nature, consent
surrogate mother, that the transfer is in the child’s best interests, that
the commissioning parents are resident in
the jurisdiction and that the child is
less than six months old (similar to the UK).
43 Snyder and Byrn, above n 18, at 634.
44 At 634.
45 At 635.
a significant cost to surrogate mothers whose rights and interests are effectively ignored.46
California allows such pre-birth parentage determinations where both commissioning parents have a genetic connection to the unborn child in question and the original intention of the parties was for the commissioning parents to become the legal parents of the resulting child.47 Although California has no statute that directly addresses the surrogacy process,48 pre-birth parentage determinations and orders are specifically authorised by the California Family Code, which states that “an order or judgment may be entered before the birth of the child”.49 However, it is important to note that the “enforcement of that order or judgment shall be stayed until the birth of the child”.50 Once a pre-birth parentage order becomes final (and the child is born) “it is enforceable against all the parties who participated in the proceedings, confirms the intending parents’ parentage, and establishes their right to be named on the child’s birth certificate”.51
The possibility of pre-birth parentage determinations makes California an attractive destination for commissioning parents who can afford to pay for surrogacy and who desire greater certainty in terms of their parentage status. However, such orders can severely impact upon the rights of gestational surrogate mothers by making surrogacy arrangements enforceable against them.52 As soon as the child in question is born, the gestational surrogate mother’s rights and interests become secondary to the commissioning parents’ wishes.
In the Ukraine, as long as a number of conditions are met (such as that the commissioning parents are married,53 that at least one of the commissioning parents has a genetic link to the intended child,54 that the surrogate mother
46 The interests and rights of surrogate mothers are discussed in further detail below in section 4 of this chapter.
47 Snyder and Byrn, above n 18, at 644 and 645. See also the Supreme Court of
California case Johnson v Calvert 851 P 2d 776 (1993).
48 Snyder and Byrn, above n 18, at 643.
49 California Family Code, § 7633.
50 California Family Code, § 7633.
51 Wademan, above n 36, at 131.
52 If no pre-birth parenting order has been made, a surrogate mother may
decide to keep the child she has given birth to and she cannot
be forced to
relinquish the child to the commissioning parents. However, after a pre-birth
parenting order has been made, it becomes
enforceable upon the birth of the
child. This means that a surrogate mother who initially consented to giving up
the child in advance
(before the child was born), and then changes her mind once
the child is born, could be forced to hand the child over to the commissioning
53 Family Code of Ukraine 2004, arts 123(2) and 21(1). See Wademan, above n 36, at 133.
54 As Wademan states (above n 36, at 133): “This is a pre-requisite for the registration of the
must not be genetically related to the child,55 and that there is a medical need for the surrogacy),56 the “intending parents are deemed the legal parents from birth, making any requirement for parentage orders or adoption unnecessary”.57 Ukraine’s approach is similar to California in that it prioritises the legal parentage rights of commissioning genetic parents and seems to remove a surrogate mother’s ability to change her mind (and decide to keep the child) once the child is born.
There is no doubt that the spirit of surrogacy arrangements is for the commissioning parents to become the legal parents of the resulting child. Pre-birth parentage determinations hasten that process and give certainty to commissioning parents. However, such orders unmistakably conflict with the interests of gestational surrogate mothers, which are discussed in more detail below.
4. THE ROLE OF THE SURROGATE MOTHER
In gestational surrogacy arrangements, the rights and interests of surrogate mothers often become secondary to those of the commissioning parents due to a lack of genetic connection between the gestational surrogate mother and the unborn child they are carrying. However, the contention that an interest in the resulting child rests solely on the basis of a genetic relationship fails to consider the complexities of gestational surrogacy. Irrespective of genetic connection, the surrogate is not physically autonomous from the unborn child she carries as she provides the unborn child with many biological resources throughout the pregnancy. As Sonia Allan states:58
As the pregnant woman breathes and feeds and her heart beats the child may grow, and is significantly affected (positively or negatively) by the biological environment in which it exists. During pregnancy, there is also a physical connection provided by the placenta, an organ built of cells from both the woman carrying the pregnancy and the foetus, which serves as a conduit for the exchange of nutrients, gases and wastes. Cells may additionally migrate through the placenta, and
intending parents as the legal parents of the child, according to para 11 of
section 1 of Chapter III of the Rules of Civil Registration
in Ukraine, approved
by the Order of the Ministry of Justice of Ukraine of 18 October 2000 No
55 Family Code of Ukraine 2004, art 123(2). See Wademan, above n 36, at 133.
56 As per the Order of the Ministry of Health of Ukraine No 771 of 23
December 2008. See Wademan, above n 36, at 133.
57 At 133-134.
58 Sonia Allan “The Surrogate in Commercial Surrogacy: Legal and Ethical Considerations” in Paula Gerber and Katie O’Byrne (eds) Surrogacy, Law and Human Rights (Ashgate, Surrey, 2015) 113 at 118.
may have a broad range of impacts on mother and child, from tissue repair and cancer prevention to sparking immune disorders.
Whilst there is a biological connection between the gestational mother and child during pregnancy, it is less clear to what extent an emotional and psychological bond is formed. One intuitively contemplates that the gestational surrogate mother must develop some feelings towards the human life that they have carried for nine months, and that some level of psychological discomfort is experienced when it comes to relinquishing the child.59 As Thackray CJ said in a recent decision of the Family Court of Western Australia, Farnell & Anor and Chanbua, (which has become known worldwide as the Baby Gammy Case) “surrogate mothers are not baby-growing machines, or ‘gestational carriers’. They are flesh and blood women who can develop bonds with their unborn children.” 60 Indeed Thackray CJ insisted on calling the surrogate mother the “birth mother” throughout his judgment because he held that to use the term “gestational carrier ... runs the risk of dehumanising a woman who carries a baby for another”.61
Allan also claims that there are “significant physical and psychological changes that take place within a pregnant woman’s body that cause her to bond with, and connect to the baby as it grows in utero (and vice versa)”.62 Indeed, the surrogate mother may form such a strong attachment to the unborn child that she refuses to relinquish the child following the birth, as occurred in the infamous Baby M case.63 In that case, although the Supreme Court of New Jersey upheld the surrogate mother’s right to change her mind after entering into a surrogacy agreement, the commissioning parents were awarded custody of the child because this was deemed to be in the best interests of the child.64
A number of empirical studies suggest that it is rare for surrogate mothers to change their minds. In the majority of surrogacy arrangements examined by such studies, surrogate mothers have positive experiences and have no problems with relinquishing the child to the commissioning parents.65 These studies challenge
59 Mary Merkenich “Surrogacy Should Put Women’s Rights
First” Green Left Weekly (online ed, Australia, 23 August
60 Farnell & Anor and Chanbua  FCWA 17 at .
61 At .
62 Allan, above n 58, at 118.
63 In Re Baby M 537 A 2d 1227 (1988).
64 In Re Baby M 537 A 2d 1227 (1988) at 1237. An important point of
difference in this case was that the surrogate mother was also the genetic
mother of the child.
This can be contrasted with situations involving
gestational surrogacy where the surrogate mother possesses no genetic connection
to the child.
65 As Pamela Laufer-Ukeles states “Empirical studies of commercial surrogacy have largely
the instinctiveness of the maternal bond, arguing that it can more properly be conceived as a “culturally constructed measure which is dependent upon the surrogate mother’s own conscious decision”.66 The surrogate may undergo a degree of cognitive restructuring as a means of easing the relinquishment process, which may be in part influenced by the agencies and doctors involved.67
Indeed there is an inherent vulnerability in the surrogate mother’s particular social context, which can make it difficult for them to make a true choice.68 In the context of Indian surrogate mothers, Amrita Pande states that some women embrace and normalise their role as surrogates by comparing the act of giving away the child to the giving away of their own daughters upon marriage; the act may be emotionally difficult, but it is necessary because the individual is viewed as “paraya dhan (someone else’s property)”.69 Indeed, the clinics and doctors involved in surrogacy in India “actively promote a ‘gift rhetoric’ to not only distance the surrogate from the foetus but also to draw the surrogate into an obligatory relationship”.70 Likewise, Usha Khanderia, an Indian doctor who owns her own surrogacy clinic, claims that she typically explains the surrogacy process
to potential surrogate mothers in the following way:71
I had to educate them about everything because, you see, all these women are poor illiterate villagers. I told them, “You have to do nothing. It’s not your baby. You are just providing it a home in your womb for nine months because it doesn’t have a house of its own. If some child comes to stay with you for just nine months what will you do? You will take care of it even more because it is someone else’s. This
concluded that surrogates and commissioning parents are satisfied and
enriched by the process.” Pamela Laufer-Ukeles “Mothering
Regulating Commercial Intimacy, Surrogacy, Adoption” (2013) 88(4) Indiana
Law Journal 1223 at 1224. See also Lina
Peng “Surrogate Mothers: An
Exploration of the Empirical and the Normative” (2013) 21 Journal of
Gender, Social Policy
and the Law 555, and Elly Teman “The Social
Construction of Surrogacy Research: An Anthropological Critique of the
Scholarship on Surrogate Motherhood” (2008) 67(7) Social
Science and Medicine 1104.
66 Teman, above n 65, at 1107.
67 Olga Van den Akker “Genetic and Gestational Surrogate Mothers’ Experience of Surrogacy” (2003) 21(2) Journal of Reproductive and Infant Psychology 145 at 159.
68 The ability of a surrogate mother to give informed consent to the surrogacy process is discussed in more detail in section 5 of the chapter below.
69 Amrita Pande “‘At Least I Am Not Sleeping with Anyone’: Resisting the Stigma of Commercial Surrogacy in India” (2010) 36(2) Feminist Studies 292 at 309.
70 Anindita Majumdar “The Rhetoric of Choice: The Feminist Debates on
Reproductive Choice in the Commercial Surrogacy Arrangement
(2014) 18(2) Gender, Technology and Development 275 at 289.
71 Pande, above n 69, at 307-308.
is the same thing. You will take care of the baby for nine months and then give it to its mother. And for that you will be paid.”
Further empirical research into the experiences of surrogate mothers (and the children they give birth to) would provide greater insight into how they are affected by the process. Although ultimately, the experiences of surrogate mothers vary significantly depending on the different circumstances (and countries) involved. For example, a surrogate mother living in India is likely to have a completely different experience of the surrogacy process than a woman from the United States or New Zealand, even though the surrogate mothers endure a similar physical experience in terms of giving birth to a child for someone else. Such disparate cultural contexts must continue to be taken into account in future studies of the experiences of surrogate mothers and sweeping generalisations about the experiences of surrogate mothers should be avoided.
5. THE ILLUSION OF INFORMED CONSENT IN SURROGACY ARRANGEMENTS
The notion of “informed consent” is considered a cornerstone of medical law.72 It assumes decisions are made by fully informed, rational, and autonomous individuals who have had the opportunity to weigh up all of the relevant options before making their decision. In New Zealand, both at common law and under the Code of Rights,73 the concept of informed consent is a “mixture of requirements relating to information disclosure [...] voluntariness, and competence”.74 Under Right 7(1) of the Code of Rights, services may be provided to a consumer only if they make an informed choice and give informed consent (except where provided otherwise). Section 2 of the Health and Disability Commissioner Act 1994 defines “informed consent” as consent to a procedure that is freely given by the health consumer (or their representative) or consent that is obtained in accordance with such requirements as are prescribed by the Code of Rights.
72 Note that the area of consent is a large and complex area within medical law and covers topics such as whether an individual has capacity to consent and what counts as legally effective consent. These topics are beyond the scope of the current chapter, but for a clear and robust discussion see PDG Skegg “The Duty to Inform and Legally Effective Consent” in PDG Skegg and Ron Paterson (eds) Health Law in New Zealand (Thomson Reuters, Wellington, 2015) 259.
73 Health and Disability Commissioner (Code of Health and Disability Services Consumers’ Rights) Regulations 1996.
74 Ron Paterson “The Code of Patients’ Rights” in PDG Skegg and Ron Paterson (eds) Health Law in New Zealand (Thomson Reuters, Wellington, 2015) 27 at 49.
However, it can be argued that informed consent is a difficult standard to meet, especially in the context of surrogacy arrangements, where the gestational surrogate mother does not necessarily control the flow of information, and where she must agree in advance to give up the child she bears.75 No one is totally autonomous; individuals are a product of the context within which they live. Rationality can easily be overtaken by an individual’s emotions. This is particularly the case in commercial surrogacy arrangements, where the individual’s decision to become a surrogate mother may be driven by financial and social pressures.76 Thus, the concept of informed consent frequently minimises the power imbalances in favour of the commissioning parents, and can be used as a justification for forcing the surrogate mother to adhere to the original decision she made (before she was even pregnant) to give up the child, when she may indeed feel differently once the child is actually born.77
Commentators examining informed consent in the context of surrogacy express a range of views on the matter. Some argue that the inherent power imbalances involved mean that surrogate mothers cannot consent to the process in any
75 Jennifer White “Gestational Surrogacy Contracts in Tennessee: Freedom of Contract Concerns and Feminist Principles in the Balance” (2015) 2 Belmont Law Review 269 at 290. See also In Re Baby M 537 A 2d 1227 (1988) at 1247-1248 where the New Jersey Supreme Court said: “Under the contract, the natural mother is irrevocably committed before she knows the strength of her bond with her child. She never makes a totally voluntary, informed decision, for quite clearly any decision prior to the baby’s birth is, in the most important sense, uninformed, and any decision after that, compelled by a pre-existing contractual commitment, the threat of a lawsuit, and the inducement of a $10,000 payment, is less than totally voluntary. Her interests are of little concern to those who controlled this transaction.” See also Molly Wilson “Precommitment in Free-Market Procreation: Surrogacy, Commissioned Adoption, and Limits on Human Decision Making Capacity” (2005) 31(2) Journal of Legislation 329 at 330 where Wilson writes: “... women who enter surrogacy contracts can never truly give informed consent because there is no way that they can know before conceiving the child how they will feel about giving up the child once the time comes.” See also Allan, above n 58, at 126-127 where the author suggests that, for true informed consent to be possible, gestational surrogate mothers should have already experienced pregnancy and childbirth so that they have a greater understanding of what is required of them and how they may feel about having to relinquish the child to the commissioning parents. This is supported by Margaret Brinig’s argument that surrogate mothers “particularly those who have not yet gone through childbirth, cannot know in advance how difficult it will be to give the child up”: Margaret Brinig “A Maternalistic Approach to Surrogacy: Comment on Richard Epstein’s Surrogacy: The Case for Full Contractual Enforcement” (1995) 81(8) Virginia Law Review 2377 at 2381.
76 See Allan, above n 58, at 126-127; Van den Akker, above n 67, at 146; and
Tobin above n 8, at 345-346.
77 Allan, above n 58, at 18.
meaningful way, and that surrogacy should be banned altogether.78 Others believe that it is “paternalistic to assume that individuals choosing to be donors or surrogates are incapable of making rational, informed choices”.79 Indeed as Richard Arneson states:80
... the thought that commercial surrogacy should be banned because the poor working women who mostly choose surrogacy are too incompetent to be entrusted to make their own decisions in this sphere has an ugly, elitist sound. ... Any such calculation of harms and benefits should proceed from the evaluative standpoint of the potential surrogates themselves and not simply impute middle-class concerns to them.
This chapter argues that the acknowledged difficulties in obtaining informed consent are not a reason to ban surrogacy altogether, but are a reason for proceeding cautiously and ensuring that the interests of gestational surrogate mothers are protected as much as possible.
There are two important safeguards in terms of informed consent that significantly reduce the amount of coercion brought to bear on gestational surrogate mothers. The first of these is the retention of the gestational surrogate mother’s right to change her mind after the child is born. This is particularly important in light of the fact that surrogate mothers have to consent in advance to giving up a child they have carried before the child is born and usually before the surrogate mother is even pregnant. Giving consent to something in terms of bodily autonomy that may or may not happen in the future is problematic.81 As Carolyn McLeod and Andrew Botterell point out, the gestational surrogate mother:82
78 See Matthew Tieu “Altruistic Surrogacy: The Necessary Objectification of Surrogate Mothers” (2009) 35(3) Journal of Medical Ethics 171.
79 Lori Andrews and Nanette Elster “Regulating Reproductive Technologies” (2000) 21(1) Journal of Legal Medicine 35 at 41.
80 Richard Arneson “Commodification and Commercial Surrogacy” (1992) 21(2) Philosophy and Public Affairs 132 at 160.
81 For example, an individual cannot consent to sexual activity in advance. Consent can only be provided at the time of the activity. An individual can not consent to engage in sexual activity with another individual in nine months time and then, when the time comes, be forced into following through with that sexual activity against their current wishes because they had consented to the activity nine months earlier. Even if the individual was going to be paid for the sexual activity, they still have the right to change their mind and refuse to take part in the sexual activity at any time prior and even during the activity. Surrogacy should be no different.
82 Carolyn McLeod and Andrew Botterell “A Hague Convention on Contract Pregnancy (or ‘Surrogacy’): Avoiding Ethical Inconsistencies with the Convention on Adoption” (2014) 7(2) International Journal of Feminist Approaches to Bioethics 219 at 224-225.
... should be protected from coercion and accorded respect for her autonomy for the very same reasons that the biological family or guardians of a child in an adoption are required to give their full and informed consent to the adoption. [...] Some would claim [gestational surrogate mothers] should not be able to revoke their consent at any stage, because the child they gestate is not their child. But such a restriction arguably fails to respect women’s bodily autonomy in pregnancy. It also signals a lack of openness about whether a [gestational surrogate mother] is a mother to the child she gestates. If she is a mother, and mothers are able to change their minds about transferring responsibility for their children to others (as in an adoption), then the [gestational surrogate mother] should not be prevented from doing so.
The second important safeguard is independent counselling for the gestational surrogate mother. This should be an essential part of any surrogacy arrangement. A requirement for counselling, so that the surrogate mother understands the physical and psychological effects of being a surrogate, can help ensure that the surrogate mother has provided true informed consent prior to entry into the arrangement.83 As stated earlier in this chapter, New Zealand is ahead of some of its international counterparts in that all surrogate mothers (and commissioning parents) must, according to the Advisory Committee on Assisted Reproductive Technology’s (ACART) regulatory guidelines, undertake counselling before entering into a surrogacy arrangement.84
The realities of informed consent for surrogate mothers illustrate that the only ethically defensible way to prioritise legal interests in a surrogacy arrangement is to begin with the vulnerabilities of the surrogate mother first.
6. THE VULNERABILITIES OF THE SURROGATE MOTHER
As Jonathan Herring contends, we are all inherently vulnerable because vulnerability is a universal and inevitable part of the human experience.85 However,
83 Allan, above n 58, at 126-128. The author also discusses whether there should be a requirement for the potential surrogate to have previously experienced pregnancy, so that she is giving consent to the arrangement with a knowledge of what the physical and psychological process of pregnancy entails (yet she acknowledges that every pregnancy is different).
84 Advisory Committee on Assisted Reproductive Technology Guidelines on Surrogacy Involving Assisted Reproductive Procedures (Advisory Committee on Assisted Reproductive Technology, Wellington, 2013) at 4-5.
85 Jonathan Herring Vulnerable Adults and the Law (Oxford University Press, Oxford, 2016) at 1-4. Herring argues that the meaning of “vulnerability” is complex and there are two major (but not necessarily contradictory) schools of thought – the first emphasises vulnerability as an essential aspect of humanity, while the second identifies a category of people who are
this chapter argues that gestational surrogate mothers are particularly vulnerable before, during, and after their pregnancies in a variety of different ways. Surrogate mothers undertake a significant degree of physical and psychological hardship to help others become parents. As Kate Galloway states:86
The risks borne by the birth mother – physical, potentially emotional and economic – on any measure outweigh the investment of the intending parents. While the latter may indeed have their own reproductive liberty at stake through contribution of a gamete or DNA, the personal cost to the birth mother still puts her at a disadvantage in the transaction overall. The justice of such a situation must be, in the event of a conflict, to uphold the rights of the party with the least power.
This section examines the physical, psychological, social, and financial vulnerabilities unique to gestational surrogate mothers, with a particular emphasis on how such vulnerabilities may be overcome.
6.1 Physical Vulnerabilities
From a physical point of view, gestational surrogate mothers are exposed to numerous health conditions associated with pregnancy,87 as well as an exclusive set of risks associated with the surrogacy process, which cannot always be predicted in advance.88 Given that only the surrogate mother’s physical health is at risk during implantation of the embryo and pregnancy (because the child is yet unborn),
vulnerable in a way above and beyond the way we are all vulnerable. See Jonathan Herring Vulnerable Adults and the Law (Oxford University Press, Oxford, 2016) at 5-44 for a more detailed discussion of the definition of “vulnerability”.
86 Kate Galloway “Theoretical Approaches to Human Dignity, Human Rights and Surrogacy” in Paula Gerber and Katie O’Byrne Surrogacy, Law and Human Rights (Ashgate, Surrey, 2015) 13 at 28.
87 Some common pregnancy-related health problems include but are not limited to anaemia, gestational diabetes, hyperemesis gravidarum (severe, persistent nausea), and preeclampsia (a condition starting after 20 weeks of pregnancy that causes high blood pressure and problems with the kidneys and other organs. See US Department of Health and Human Services Office on Women’s Health “Pregnancy Complications” (27 September 2010) <www.womenshealth. gov>.
88 Health problems exclusive to surrogacy (and assisted reproductive technologies generally) include possible infection or bleeding during implantation: see Surrogate Solutions “What Are Some Risks of Being a Gestational Surrogate?” (28 September 2012) <www.surrogatesolutions. net>. See also Jonathan Knoche “Health Concerns and Ethical Considerations Regarding International Surrogacy” (2014) 126 International Journal of Gynaecology and Obstetrics 183 who states at 184 that “conception by IVF leads to higher rates of hypertension, pre-eclampsia, cholestasis, hyperemesis gravidarum, and venous thromboembolism”.
the law must at this stage prioritise the health of the surrogate mother above all other interests. No other rights or interests should override the surrogate mother’s physical health. This is consistent with s 4(c) of the HART Act. Any claims or rights to parentage by the commissioning parents (genetically related or otherwise) must be suspended in favour of the surrogate mother’s well-being. The common law (apart from the restraints on abortion and the offence of deliberately killing an unborn child),89 has generally put the interests of the pregnant mother first.90 As May LJ said:91
... to apply the principle that it is in the interest of the child which is to be predominant is bound to create conflict between the existing legal interests of the mother and those of the unborn child and that it is most undesirable that this should occur. Next, I think that there would be insuperable difficulties if one sought to enforce any order in respect of an unborn child against its mother, if that mother failed to comply with the order. I cannot contemplate the court ordering that this should be done by force, nor indeed is it possible to consider with equanimity that the court should seek to enforce an order by committal.
Like pregnancy itself, the birth process also generates a number of risks for the surrogate mother.92 These risks can result in a number of choices that the surrogate mother may have to exercise in relation to her own well-being, as well as that of the unborn child she is carrying. These choices are hers alone to make and the commissioning parents cannot abrogate her wishes. At common law, expectant mothers are given the freedom to determine the process of birth.93 The same rights must be given to gestational surrogate mothers, regardless of the fact that the unborn child is the genetic offspring of usually at least one of the commissioning parents. The physical well-being of the surrogate mother needs to be protected at all costs and she needs to have access to the best possible medical care in this regard.
89 Crimes Act 1961, s 182.
90 See Baby P (An unborn Child)  NZFLR 577 (FC), Re An Unborn
Child (No 1)  NZFLR 344 (HC), and R v M  NZFLR 1095
91 Re F (In Utero)  Fam 122 (CA) at 138.
92 For example, the baby may enter a breech position in the mother’s uterus or cephalopelvic disproportion (CPD) may occur, in which the baby’s head is too big to pass through the mother’s pelvis. Both conditions may require the surrogate mother to have an unplanned caesarean section.
93 In R v Collins and others, Ex Parte S  EWCA Civ 1349;  Fam 26 (CA), the English Court of Appeal held that even when her own life depended on receiving medical treatment, an adult of sound mind was entitled to refuse it. That right of a pregnant woman was not diminished merely because her decision to exercise it would result in the death of an unborn child.
6.2 Psychological Vulnerabilities
In addition to the physical effects of pregnancy and childbirth, there is a very real likelihood that the surrogate mother will suffer at least some psychological trauma.94 Empirical research shows that some surrogate mothers develop a strong bond with the child they have carried for the commissioning parents.95 Some surrogate mothers also develop a close relationship with the commissioning parents during the process, and feelings of grief following the termination of the surrogacy arrangement may arise from a loss of companionship, rather than the loss of the child.96 Support such as counselling must be available to the surrogate mother, not just when she undertakes the surrogacy process, but also after the surrogacy is complete to ensure that the psychological interests of the surrogate mother are protected throughout the entire process.97 As previously stated, New Zealand is ahead of some of its international counterparts in that our regulations explicitly address the provision of counselling in surrogacy arrangements.98
When things go wrong, gestational surrogate mothers can experience additional levels of psychological suffering and are not always provided with the requisite level of support. For example, in one case where a child born as a result of surrogacy died ten days after birth one of the commissioning parents expressed her concern for the surrogate mother saying:99
I left feeling very concerned for her because I get to come home to the US, and we have [counselling] services and a lot of privilege, and while I know that her economic life will be better, I’m not sure she’ll be able to handle this emotionally by herself. She was devastated. She is my son’s mother too.
94 For example, a risk of postpartum depression after pregnancy is triggered by hormonal changes in the woman’s body. Levels of thyroid hormones may also drop after giving birth, which can cause problems associated with depression such as irritability, fatigue, concentration difficulties, and weight gain. See US Department of Health and Human Services National Institute of Diabetes and Digestive and Kidney Diseases “Health Information: Pregnancy and Thyroid Disease” (April 2012) <www.niddk.nih.gov>.
95 See Susan Imrie and Vasanti Jadva “The Long-Term Experiences of
Surrogates: Relationships and Contact with Surrogacy Families
in Genetic and
Gestational Surrogacy Arrangements” (2014) 29 Reproductive BioMedicine
Online 424 at 430.
96 Teman, above n 65, at 1111.
97 Alawi, above n 3, at 355.
98 Human Assisted Reproductive Technology Act 2004, s 14(4)(a).
99 Darlena Cunha “The Hidden Costs of International Surrogacy” The Atlantic (online ed, United States, 22 December 2014).
In such instances, adequate counselling and emotional support is even more crucial for the surrogate mother’s psychological well-being.
6.3 Social Vulnerabilities
As was discussed earlier in this chapter, there is frequently an inherent vulnerability in the surrogate mother’s particular social context. Some attitudes equate surrogacy to prostitution or slavery, imposing a sense of “otherness” upon the surrogate mother, which sees her isolated from the community during her pregnancy.100 This is particularly the case in countries such as India and Thailand, which hold strong religious beliefs about motherhood and obligation.101 The stigmatisation which surrogate mothers face in these societies often results in surrogate mothers keeping their actions secret from their communities and extended families. Many remain in surrogacy clinics throughout their pregnancy or find temporary accommodation during the last months of their pregnancy.102 Though the law cannot properly be expected to regulate the moral beliefs of society, it should ensure that surrogate mothers are treated as fairly and humanely as possible by those involved in the process.
6.4 Financial Vulnerabilities
Surrogate mothers give up their time and take on a significant degree of physical and psychological risk. They must be compensated fairly for this effort, not just for the medical and legal costs incurred. However, many jurisdictions expressly ban commercial surrogacy for fear that paying women to be surrogates could commodify women and/or the resulting children. Where commercial surrogacy is allowed, surrogate mothers are not always treated equitably across different jurisdictions. Particularly in third world countries, agencies, clinics, lawyers, and intermediaries gain the majority of the profits.103 Surrogate mothers in those countries have diminished bargaining power in this regard and cannot reasonably be expected to protect their own interests. It is therefore the responsibility of the law to accord financial protection to ensure surrogate mothers receive adequate payment for their services.104 Indeed the concept of a minimum payment for surrogacy services, regardless of where in the world the surrogacy takes place,
100 Pande, above n 69, at 293; Teman, above n 65, at 1110.
101 Whittaker, above n 4, at 104, 111, and 113.
102 Pande, above n 69, at 298.
103 Allan, above n 58, at 126.
104 Article 10(2) of the International Covenant on Economic, Social and Cultural Rights (ICESCR) states “Special protection should be accorded to mothers during a reasonable period before and after childbirth. During such period working mothers should be accorded
has been posited. However, it is acknowledged that determining the appropriate minimum amount would be a challenging exercise. As McLeod and Botterell state:105
A more pressing question is whether there should be a remuneration minimum for the labor involved in conceiving and gestating a child for others. The aim in imposing a minimum would be to prevent the exploitation of poor or disenfranchised women. We favour such a measure but recognize the difficulty in coming up with an amount that would not unduly induce some women to engage in contract pregnancy.
7. FUTURE DIRECTIONS FOR SURROGACY: AN INTERNATIONAL CONVENTION PRIORITISING THE INTERESTS OF THE SURROGATE MOTHER
The ultimate goal of all parties to a surrogacy agreement is for the commissioning parents to become the legal parents of the resulting child carried by the surrogate mother. However, without the significant physical and psychological contribution of the surrogate mother, the commissioning parents would not be able to have the child they desire. To transfer parentage status too early (before the child is born) would put the surrogate mother’s interests at risk. It would also not reflect the reality that during gestation and birth, the surrogate mother is the child’s legal mother and has the same legal recognition as any other mother.
For surrogacy to work in any kind of ethical way the surrogate mother’s interests must be given priority, particularly during the pregnancy and birth process. Once the child is born, then the universal standard, the welfare and best interests of the child, must apply. However, that does not mean the vulnerabilities of the surrogate mother should be forgotten. She should still be financially compensated for her efforts and should also have the option of ongoing counselling where required.
Commercial surrogacy has become big business internationally. In order to properly protect the interests of gestational surrogate mothers in a fair and consistent manner, an international convention is required to ensure all surrogate mothers receive an adequate level of protection, regardless of where they live and where the surrogacy takes place. In particular, surrogate mothers must be
paid leave or leave with adequate social security benefits.” New
Zealand ratified the ICESCR on 28 December 1978.
105 McLeod and Botterell, above n 82, at 227.
protected from organisations and fertility clinics that merely wish to exploit their reproductive labours to turn a profit. As Ruby Lee states:106
Governments should recognize their duty to protect children, women, and families from opportunistic and reckless practitioners who primarily seek to profit from the existing climate of disparate regulation of commercial surrogacy. Many public policy issues can no longer be resolved within the isolation of national borders. Whether it is climate change, the current economic crisis, terrorism, or commercial surrogacy, success requires either global coordination or cooperation. Inaction could harm the health and safety of women and children.
This chapter argues that an international convention, the development of which is currently being considered by the Hague Convention on Private International Law,107 needs to meet the following minimum requirements in terms of prioritising the interests of gestational surrogate mothers.
7.1 Parentage Status
Every gestational surrogate mother must be recognised as the legal mother of the child she carries for the commissioning parents at all times during pregnancy, as well as during and after childbirth, unless and until the surrogate mother consents to relinquish her parentage status to the commissioning parents.108 This reinforces the important role played by surrogate mothers and ensures their rights are prioritised throughout the surrogacy process. Such an approach also significantly limits the commodification of women and their reproductive abilities. Pre-birth parentage determinations of any kind in favour of commissioning parents should be prohibited, as they will inevitably contribute to an erosion of the surrogate mother’s rights during the pregnancy and birth process. This approach does not in any way limit the fact that once a child is born the welfare and best interests of the child becomes the paramount consideration.
106 Ruby Lee “New Trends in Global Outsourcing of Commercial Surrogacy: A Call for Regulation” (2009) 20(2) Hastings Women’s Law Journal 275 at 299.
107 The Hague Convention on Private International Law is currently considering creating a Hague Convention on international surrogacy arrangements. See McLeod and Botterell, above n 82. See also Hague Conference on Private International Law “The Private International Law Issues Surrounding the Status of Children, Including Issues Arising from International Surrogacy Arrangements” (2016) The Parentage/Surrogacy Project <www.hcch.net>.
108 This reflects the current parentage status of surrogate mothers under New Zealand law. Section 17 of the Status of Children Act 1969 states that a surrogate mother is the legal mother of any
child she carries and gives birth to, regardless of any biological connection to the child.
7.2 Independent Legal Advice
All potential gestational surrogate mothers need independent legal advice before they enter into a surrogacy arrangement and before they become pregnant.109 This legal advice will ensure that the potential surrogate mother understands that while she is pregnant her right to determine her own health and well-being prevails over all other interests and that once the child is born she is the child’s legal mother (regardless of the fact she is not genetically related to the child) unless and until she consents to transferring her legal parentage status to the commissioning parents. The legal advice should also ensure the surrogate mother understands that surrogacy agreements or contracts are not enforceable against her if she changes her mind and elects to keep the child and that she can opt out of the agreement at any time.
All gestational surrogate mothers need extensive counselling before they agree to undertake the surrogacy process (before they become pregnant) to ensure they are best able to cope with the intense physical and psychological aspects of surrogacy.110 The counselling process should also highlight those individuals who are not emotionally suitable for the task. Once the surrogacy process has begun, counselling should continue to be available for the surrogate mother at all times and should continue to be available after the child is born and after the surrogate mother has transferred her legal parental status to the commissioning parents.111 This is particularly crucial given the fact that it is difficult for a surrogate mother to predict in advance how she will feel about relinquishing the child when the time comes (unless she has already been a surrogate mother).
109 The Advisory Committee on Assisted Reproductive Technology requires that surrogate mothers (and commissioning parents) receive independent legal advice before entering into a surrogacy arrangement. See Advisory Committee on Assisted Reproductive Technology Guidelines on Surrogacy Involving Assisted Reproductive Procedures (Advisory Committee on Assisted Reproductive Technology, Wellington, 2013) at 4-5.
110 The Advisory Committee on Assisted Reproductive Technology requires that surrogate mothers (and commissioning parents) receive counselling before entering into a surrogacy arrangement. Advisory Committee on Assisted Reproductive Technology Guidelines on Surrogacy Involving Assisted Reproductive Procedures (Advisory Committee on Assisted Reproductive Technology, Wellington, 2013) at 4-5.
111 A study of the long-term experiences of surrogate mothers found that a small number of surrogate mothers reported psychological health problems associated with surrogacy. See Imrie and Jadva, above n 95, at 433.
7.4 Fair Remuneration
Gestational surrogate mothers should be paid fair remuneration for the work they have undertaken.112 The commissioning parents should pay for all of the surrogate mother’s independent legal and counselling expenses. All medical and treatment costs associated with the surrogacy process will also be paid for by the commissioning parents, despite the fact that the gestational surrogate mother retains all clinical decision-making rights in terms of her own health and the health of the unborn child. A gestational surrogate mother should also be paid a fair amount of remuneration to reflect her important role in carrying the child for the commissioning parents and the physical and psychological risks she has undertaken.113 This payment is to be over and above the expenses incurred as a result of the surrogacy arrangement.
7.5 Social Status
Any international convention on surrogacy should contain a clear statement that surrogate mothers are to be treated with dignity and respect at all times by all those involved in surrogacy procedures. Such a statement should also acknowledge the important contribution that surrogate mothers make to society.
7.6 Future Contact with the Child
Provision should also be made (where appropriate and desired by all parties) for the possibility of ongoing contact between the child and the surrogate mother subject to what is in the welfare and best interests of the particular child concerned. One study of the long-term experiences of surrogate mothers found that ongoing future contact with the child was seen as a positive experience for surrogate mothers (regardless of whether or not they had a genetic connection to the child).114
Surrogacy is undoubtedly a complex issue, with many competing interests and perspectives to consider. The appropriate legal response is not to prohibit surrogacy, but to properly prioritise the competing interests in a rational and
112 See Mark Henaghan and Ruth Ballantyne “International Child Abduction, Intercountry Adoption and International Commercial Surrogacy” in John Eekelaar and Rob George Routledge Handbook of Family Law and Policy (Routledge, Oxon, 2014) 383 at 400.
113 It is acknowledged that determining a fair minimum amount that can be
used internationally would be a challenging exercise. See
McLeod and Botterell,
above n 82, at 227.
114 See Imrie and Jadva, above n 95, at 430.
ethically justifiable manner.115 As Claire Fenton-Glynn said, “We must face up to the reality that surrogacy cannot be regulated through punishment, but must work on safe and ethical facilitation.”116 The surrogate is first and foremost a mother. Consequently, this chapter has emphasised the importance of prioritising the interests of the surrogate mother (above the interests of the unborn child and the commissioning parents) during pregnancy and childbirth in the same way as the interests of all mothers are protected during these times. Once the child is born, the child’s welfare and best interests become the first and paramount consideration. However, the surrogate mother’s interests should still be prioritised above those of the commissioning parents until the surrogate mother consents to the transfer of her legal parentage status to the commissioning parents. The surrogate mother should retain the power to change her mind at any stage during this process and no surrogacy agreement or contract should be legally enforceable against her.
Prospective commissioning parents (especially those with a genetic connection to the child carried by the surrogate mother) may well feel that the proposed order of priority provides insufficient recognition of the fact that the resulting child will be genetically related to them. There is no denying such interests are important. However, if such interests are prioritised above all else, then surrogate mothers (and their bodies) are subjugated in a way that other mothers are not. A surrogate mother should not be treated as a second-class mother, or as a mere incubator, but rather with the respect and dignity she deserves as a legal mother of the resulting child. The introduction of an international convention to this end is the only way of ensuring surrogate mothers across the world are treated consistently and with the respect they deserve.
115 An outright ban on surrogacy will simply not work. Individuals desperate
to have a child via surrogacy will always find a way
around the rules. For
example, commercial surrogacy is prohibited in Western Australia. However, in
the recent case of Farnell & Anor and Chanbua  FCWA 17 (known
internationally as the Baby Gammy Case) this did not stop the
commissioning parents (who lived in Western Australia) from going to Thailand to
undertake commercial surrogacy.
This case is a good example of the myriad of
things that can go wrong with unregulated international commercial surrogacy and
be seen as somewhat of a cautionary tale.
116 Fenton-Glynn, above n 39, at 74.