Tue | Nov 24, 2020

Editorial | Need for surrogacy law urgent

Published:Sunday | July 28, 2019 | 12:00 AM

Recent reporting by this newspaper has highlighted the fact that an increasing number of Jamaican women are openly offering their services for surrogate pregnancy, underlining, we believe, an urgent need for a legal framework within which any such act, or enterprise, should exist.

Indeed, The Sunday Gleaner discovered at least two international websites, with more than 100 Jamaican women advertising their willingness to carry the babies of others who, for whatever reason, are unable to do it for themselves. This, though, is not only an externally based, or managed, enterprise. For, as we noted in last Sunday’s report, there is a domestic, institutional element, too, to surrogacy. The Fertility Management Unit of the University Hospital of the West Indies is also involved.

That unit, its director, Dr Vernon DaCosta, disclosed, recruits potential surrogates, who it matches with its fertility patients, who need that kind of help. “We definitely need more people to volunteer to be surrogates,” Dr DaCosta said. The insufficiency of volunteers, of which Dr DaCosta complained, is, we suspect, partly because of the rigorous evaluation, physical and psychological, that potential surrogates must undergo, as well as the fact that such an arrangement exists in Jamaica isn’t widely known.

There is little doubt that while altruism, as they claim, might be the motivation for some Jamaican women to become surrogates, the greater driver is likely to be money – a way for participants to lift themselves from real, or relative, poverty. In this regard, especially as the ‘opportunities’ of surrogacy become more widely known in Jamaica, the enterprise is likely to grow. It is against this backdrop, and given the unfeasibility of making it illegal, that there is need for a legislative system within which surrogacy can operate. Indeed, surrogacy raises many ticklish questions, among them the real parent of a child born of the egg of one woman, but carried in the womb of another.

NOTHING IN THE LAW RE PARENTHOOD

That question is not addressed in Jamaican law. Under the Status of Children Act, a child born to a married woman during her marriage, or within 10 months of the dissolution of the marriage, either by death or otherwise, “shall, in the absence of evidence to the contrary, be presumed to be the child of its mother and her husband, or former husband, as the case may be”. In the case of an unmarried mother, the name of the father of the child can be registered at birth, or maybe his parenthood can be acknowledged, and registered, at a subsequent time.

There is nothing in the law relating to the legal parenthood of a child whose presumptive mother was merely a surrogate, who may have been paid to be host during the development of the baby, until its birth. In the event, the right to such a child can only be the subject of contract between the surrogate and the person(s) for whom she has acted. Further, as the law now stands, even if the undertakings of the surrogacy agreement are met, the legal right to parenthood by the procuring person(s) can, on the face of it, only be fulfilled through adoption.

Surrogacy, therefore, is, on the face of it, a potentially fraught exercise. The procuring parents could change their minds, leaving the surrogate mother with a, perhaps, unwanted baby or a contractual dispute, which may not be enforceable in law. Similarly, a surrogate mother, for whatever reason, may be unwilling to give up the baby. There are a range of other potential disputes between these two extremes.

In the circumstances, the government should, quickly, begin to consider legislation regulating surrogacy. Further, Parliament’s Human Resources and Development Committee, even before it completes its work on proposed changes to the abortion law, should open hearings on this matter.