Landmark ruling weakens surrogacy laws

The law regulating surrogacy has shifted following a landmark High Court ruling which may open the door for infertile couples to pay surrogate mothers large sums of money to have babies for them. A High Court Judge has allowed a British couple to keep their child even though they gave more than “reasonable expenses” to the American mother.

Under the Surrogacy Arrangements Act 1985 only “reasonable expenses”, which now can average £15,000, are allowed and must be agreed upon by the parties. Mr Justice Hedley said in the High Court on Wednesday: “It is clear to me that payments in excess of reasonable expenses were made in this case.”

However, the Judge said that the existing rules on payments were unclear and that only in the “clearest case” of surrogacy for profit would a couple be refused the necessary court order to keep the baby. The Judge claimed that 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 must follow that 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.”

Mr Justice Hedley warned that the courts would continue to consider the amount of money paid in each individual case, to ensure that a market is not established.

The High Court ruling will be taken by many couples as a welcome sign that they can now pay women to bear children for them without fear of breaking the law.

A review commissioned by Labour suggested that expenses be defined more strictly but its recommendations were not implemented.

Andrea Williams, director of the Christian Legal Centre, said: “We have compassion for couples that are unable to have children. However, the regulations that we have in place are supposed to ensure that there is no element of profit in the whole process. 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. A line has now been crossed as profit has essentially been made in this case. This weakening of the regulations is a step in the wrong direction. The decision could put women at risk if they start renting out their wombs.”