Laws of Eve | Why is it important to have surrogacy laws?
The topic of surrogacy does not stand alone. It is a part of the far bigger topic of artificial reproductive technology, which includes the harvesting of sperm and eggs, the creation of embryos, in vitro fertilisation and gender selection, to name a few. Even more important, at the centre of all of these discussions is the deeply emotional matter of infertility and its effect on families.
For the several groups that are affected by the opportunities and challenges that advancements in medical science have created, from the fertility management clinics to the expectant parents and the innocent products of the treatments, the risks and uncertainties require careful consideration. Not only are the risks measured by the high costs of treatment, but the question that looms large is whether the agreements on which the various relationships are forged are enforceable.
The recent surrogacy discussions in Jamaica owe their resurgence to the front page story in The Sunday Gleaner on July 21, 2019. Many things have since emerged, including the call for laws to be enacted, which some may label as ‘much ado about nothing’, since fertility management clinics have been handling the process successfully for many years and there have been no lawsuits. For them, the question is why we should try to fix something that is not broken by imposing new laws.
For legislators, the topic of artificial reproductive technology, like abortion and homosexuality, is a hot button about which there are deep divides that are infused with the debates about law and morality. In this context, where we have no laws that limit the number of children any woman can have or the number of potential fathers for her children, the question could legitimately be asked as to why reproductive rights should be regulated at all, simply because reproductive technology is facilitating the process.
From my perspective as an advocate for law and order, in general, the basis of my view that regulation is best is that certainty about legal rights is always the preferred platform on which to forge relationships. In the area of reproductive technology, there are several relationships that must be considered. Three such relationships exist between:
• The fertility management facility and the patient or patients
Whether there is a single patient or a couple receiving treatment from a facility, a significant level of care is required to ensure that the rights and responsibilities of the parties are clearly explained, documented and agreed. Examples of potential issues relate to the ownership of harvested reproductive samples, their storage and the authorisation that is required for them to be used or disposed of. Cases exist in which couples separate after creating an embryo and one party wishes to dispose of the embryo while the other wants to use it, and a clear statement on the law may limit the scope for debate.
• The patient and a donor
Where a patient receives donated sperm, both the patient and the donor must understand and agree as to their respective obligations once a child is conceived. There are cases in which the sperm donor has been sued for child support, and the question is whether this should ever be possible.
• The patient and a surrogate
A surrogate will either have a biological connection to the child she carries or not, depending on whether she is also an egg donor. Once conceived, the level of financial support the surrogate receives to cover prenatal expenses and general care, and whether she is paid a separate fee for carrying the child, are immediate considerations. After the child is born, the further issues as to whether the surrogate will be compelled to give the child to the biological parent or parents, whether the parents are compelled to take the child even if the child has a disability and, generally, whether the contract between the parties is enforceable are all issues that need to be clarified.
Ultimately, are any of these arrangements contrary to public policy? It is very important to know this.