The legal challenges surrounding surrogacy
While conducting research in preparation for the article Surrogacy and Custody of a Child, I came across some interesting articles and cases on surrogacy, which have prompted me to write this article and highlight the fact that the absence of appropriate legislation could result in legal challenges.
I agree with the author of Surrogacy Overview, who said that, "There are two legal aspects to gestational surrogacy agreements: the contract and finalisation of parental rights."
In relation to the contract, it is easy to agree that there should be a clear written document, signed by the surrogate and the intended legal parent or parents outlining each party's rights and obligations. That contract should include any agreed compensation, responsibility for medical bills and expenses associated with pre-natal care, the surrogate's consent for her medical records to be made available to the intended legal parents and any other detail that could allow the parties to avoid controversy over decisions related to the care of the foetus and handing over of the child at birth.
Even with a seemingly 'airtight' contract, it is still doubtful whether the contract will be legal or enforceable under Jamaican law, as there is concern that it could be void as being contrary to public policy. What then if either party fails to uphold his or her end of the bargain? What would become of the child, and could the surrogate be forced to hand over the child to the biological parents?
There are several factors to be considered in relation to the contract. Will it be a commercial arrangement whereby the surrogate is paid for carrying the child, or will it be an altruistic arrangement whereby the intended legal parents only agree to cover the reasonable pre-natal expenses? In some countries, commercial contracts are unlawful, and this acts as a guard against the growth of fertility tourism or the 'rent-a-womb' industry.
Unfortunately, the issues may not end after the child is born because the entries to be made on the child's birth certificate could become problematic. Depending on the arrangements for surrogacy, the surrogate may have no genetic connection to the child at all. That is to say, an embryo from both biological parents could have been implanted in the womb of the surrogate. In that case, if the issue of legal parentage is being scientifically determined, the birth mother would not be the legal mother.
However, in the current state of the law, the child's birth certificate would have the birth mother's name inserted as mother and the father's name would either be the surrogate's husband (based on the legal presumption that a woman's husband is the father of her child) or the biological father if he declares his status at the time of registration.
Whereas there are frequent applications for declaration of paternity before our courts in reliance on DNA evidence, the concept of an application for "declaration of maternity" has not been explored. I wonder, however, if a court could resist making such a declaration in the face of irrefutable DNA evidence showing that the child's biological mother is someone other than his or her birth mother.
In some countries, the biological parents adopt the child in order to sever all legal connections between the surrogate and the child. Of course, adoption laws are not uniform across all jurisdictions, so it cannot be taken for granted that the adoption will be successful or that the child will be able to get the requisite travel documents to leave the country with the legal parents.
In Jamaica, the ordinary obstacles in completing adoptions, which are handled by the Child Development Agency, particularly for a child to be removed from the country, could prove to be insurmountable because of the uncertain legal status of the contractual arrangements between thesurrogate and the legal parent.
The issues sit squarely on the shoulders of our legislators. Our child-care laws are premised on the principle that the welfare of the child is the paramount consideration. In keeping with that approach, and given the clear evidence that the demands for surrogacy are increasing, the relevant amendments to our laws should be considered as a matter of priority before the courts are forced to make decisions in reliance on laws that make no specific provisions for surrogacy.
Sherry Ann McGregor is a partner and mediator in the firm of Nunes, Scholefield, DeLeon & Co. Please send your comments and questions to firstname.lastname@example.org or email@example.com on twitter @lawsofeve.