Way now clear for surrogacy for profit

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This was published 13 years ago

Way now clear for surrogacy for profit

By Martin Beckford and Tim Ross

LONDON: British childless couples are free to pay surrogate mothers large sums to have babies for them after a landmark High Court ruling.

A senior family court judge allowed a British couple to keep a child even though technically they had broken the law by giving more than ''reasonable expenses'' to the American natural mother.

Justice Mark Hedley said the rules on payments were unclear and put the baby's welfare at risk. Only in the ''clearest case'' of surrogacy for profit would a couple be refused the court order necessary to keep the baby, he said.

Infertile couples will see the ruling as a signal that they can now pay women to bear children without fear of prosecution.

But it led to renewed calls for the reform of 25-year-old laws designed to discourage ''rent a womb'' surrogacy.

Andrea Williams, the director of the Christian Legal Centre, said: ''Children are not commodities to be bought and sold. It is not the case that everybody has the right to a child, whatever the cost.''

Surrogacy has been regulated in Britain since 1985 after Kim Cotton was paid £6500 to carry a child conceived using her egg but the sperm of a man whose wife was infertile.

Under the Surrogacy Arrangements Act, companies were banned from broking deals between couples and potential mothers for profit. All arrangements had to be based on trust rather than money, and were not legally binding.

Only ''reasonable expenses'', which now average £15,000 ($24,100), were allowed and had to be agreed by both parties.

In 1990, another law introduced parental orders which couples must obtain to be regarded as the baby's legal parents.

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Many couples desperate to have children travel to countries where there are no limits on payments or to countries such as India where ''reasonable expenses'' are likely to be far lower.

In this case, the unnamed British couple contacted a woman in Illinois where there are no limits on payments for surrogacy.

The baby was allowed to enter Britain only temporarily on a US passport. On Wednesday, Justice Hedley granted a parental order so the child could stay in the country with its new parents.

He said it was clear ''that payments in excess of reasonable expenses were made''. In addition, the payments to the surrogate mother were described as ''compensation'' rather than expenses.

But the judge said the concept of reasonable expenses was ''somewhat opaque'' and added: ''Welfare is no longer merely the court's first consideration but becomes its paramount consideration. The effect of that must be to weight the balance between public policy considerations and welfare decisively in favour of welfare …

''It will only be in the clearest case of the abuse of public policy that the court will be able to withhold a [parental] order if otherwise welfare considerations support its making.''

But he warned that the courts would continue to consider the amount of money paid in each case, to ensure a market was not established.

Neil Addison, the founder of St Thomas More Legal Centre, said there was little an English court could do once such arrangements had been made in countries where big payments to surrogate mothers were legal.

Telegraph, London

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