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Friday, October 16, 1998 Published at 15:30 GMT 16:30 UK


Review proposes regulation for surrogacy

Ministers and experts say surrogacy is here to stay

The BBC's Fergus Walsh: An estimated one baby a week is born through surrogacy
Tighter controls on the deals struck between couples and surrogate mothers have been proposed by an independent review.

The review, set up last June following a number of high profile cases, aims to prevent women profiting from surrogacy.

It says surrogate mothers should only be paid for "genuine and verifiable expenses" incurred during pregnancy, such as loss of earnings.

Mothers will have to produce evidence of expenses.

In the past, some have received additional sums for their services.

However, some say the rules may mean little change because payments for services are already being passed as expenses.

Other recommendations include:

  • a proposal that the Department of Health should register all surrogacy agencies with those not registered being eventually liable to criminal prosecution.
  • a code of practice to govern the way agencies operate, including a requirement that the Department of Health collects information on the impact of surrogacy and sets out guidelines on research.
  • a proposal that parental orders handing over responsibility for a child to the commissioning parents should only be available through the High Court.
  • the recommendation that a new Surrogacy Act to put the proposals into UK legislation and to replace existing surrogacy laws be laid before parliament.

Surrogacy here to stay

Professor Margaret Brazier of Manchester University chaired the review.

Professor Margaret Brazier: "Payments to cover the usual costs of pregnancy"
She said the Department of Health would have to draw up guidelines on what constituted "reasonable expenses".

These would cover costs for maternity clothing, child care and "genuine loss of income".

[ image: Professor Magaret Brazier chaired the review]
Professor Magaret Brazier chaired the review
She said the measures were designed to ensure anyone partaking in a surrogacy agreement would be fully informed of the potential risks.

"Whenever an arrangement is entered into, the parties should between themselves agree on what we have called a memorandum of understanding," Professor Brazier said.

"That would set out quite clearly all the expectations that each party had of each other - the expenses that are to be paid, the relationship between the commissioning couple and the surrogate, the measures that the surrogate ought to be taking to take care of herself.

Professor Margaret Brazier: "A memorandum of understanding"
"It is important that there should not be enforceable agreements, there should not be a contractual arrangement.

"But to minimise the risk to everybody involved the couple and the surrogate need to be entirely open with each other and they need some sort of document in which they set out and record their expectations of each other."

Public health minister Tessa Jowell said the recommendations of the review were "pragmatic" and "sensible".

She said there was no way of realistically banning surrogacy.

She highlighted the recommendations to provide more information to couples about surrogacy and to limit payments to surrogate mothers.

"Nobody wants to see babies treated as commodities or vulnerable people exploited," she said.

Fraught area

She told BBC Radio's Today programme: "This is a fraught area and one where government needs to tread very carefully indeed."

Health minister Tessa Jowell: "This is a fraught area"
She said more information was needed about the impact of surrogacy on the baby, the baby's mother and the commissioning couple.

"Because surrogacy has this highly ambiguous status, other problems to do with it have never been aired and we have very little information about the long-term problems - where there are problems - of the children that are born," she said.

Research is expected to cover issues such as the psychological impact of surrogacy on the child and any other children the surrogate mother may have.

[ image: Tessa Jowell launched the review in 1997]
Tessa Jowell launched the review in 1997
However, despite the review, Ms Jowell did not foresee any change in the legal status of the contract between the surrogate mother and the commissioning couple.

Currently, if the surrogate mother decides she does not want to hand the baby over at the end of the pregnancy, she cannot be forced to do so.

Professor Brazier said the incidence of such refusals may vary depending on whether the surrogate mother was also the child's genetic mother, but there was no research evidence of this.

Professor Margaret Brazier: "Genetic bonds"
It is more common for a refusal to be down to a disagreement between the couple and the surrogate.

While the review will affect surrogacy agencies, private arrangements between couples and relatives or friends will not be subject to regulations.

One baby a week

Mother "pleased that surrogacy is allowed"
In the UK, it is thought at least one baby a week is born to a surrogate mother and a number of high-profile cases prompted the government to order an independent review of the law in June 1997.

Surrogacy is legal in the UK, but no money can be paid to the surrogate mother other than "reasonable expenses".

However, until now, there has been no strict definition as to what constitutes "reasonable expenses", so it has been up to those involved to reach a financial agreement.

Present arrangements suggest up to £10,000 to be paid to a surrogate mother, ostensibly to pay for her outgoings and recompense her for loss of earnings because of the pregnancy.

But this is thought to have been abused, with couples simply handing over money as payment.

Bob Sinkinson reports on the measures
The review proposals, which will be put out from consultation before being adopted, aim to change that, putting the welfare of the children first.

The British Medical Association, which has long called for monitoring of and regulations for surrogacy arrangements, has welcomed the review's recommendations.

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