I must begin this post with a confession: I had actually never watched EastEnders before this past week. Years of fans, including my clients, yelling “Hey, Ricky” at me because of my namesake, Bianca Jackson (Patsy Palmer) was enough to put me off engaging with the residents of Albert Square in any meaningful way. However, I decided to make an exception when I learned that the show would be presenting a surrogacy storyline. Surrogacy is often misrepresented in the media, and I had hoped that EastEnders, which is known for grappling with social issues from HIV/AIDS to child grooming, would finally clear up some of the misapprehensions that abound.
However, my optimism was short-lived when it became clear that the writers of the storyline had prioritised scintillation over the reality of surrogacy arrangements in the UK. To summarise: (spoiler alert) newlyweds Rainie (Tanya Franks) and Stuart (Ricky Champ) Highway have just found out that Rainie is unlikely to be able to carry a child to term. After they glance through a one-page leaflet about surrogacy, Rainie reaches out to 17-year old Tiffany Butcher-Baker (Maisie Smith) who works as a beautician at their funeral parlour, offering her £10,000 to carry their baby for them. Though Tiffany’s husband, Keegan, is not in favour of the arrangement and initially refuses on her behalf, Tiffany informs him that she can do what she wants with her body and accepts Rainie and Stuart’s offer.
Where to begin? Firstly, Rainie and Stuart should not be offering Tiffany £10,000 as remuneration to carry their child. Commercial surrogacy is illegal in the United Kingdom pursuant to s.2(1) of the Surrogacy Arrangements Act 1985 (SAA 1985). Whilst under s.2(2) of the SAA 1985, neither Rainie, Stuart nor Tiffany would be guilty of an offence if they did engage in such an arrangement, payment would have ramifications for when Rainie and Stuart apply for a parental order for the child. For those who do not practice in this area of law, the surrogate mother and her husband/wife/civil partner are considered the legal parents of a child born through surrogacy, even if they are not the child’s biological parent(s) [s.33 and 35, the Human Fertilisation and Embryology Act 2008]; in other words, when the child is born, Tiffany and Keegan will be his/her legal parents (unless Keegan does not consent to the treatment). Rainie and Stuart would then need to apply for a parental order, which would extinguish the legal parenthood of Tiffany and Keegan and grant it to Rainie and Stuart.
In order to obtain a parental order, Rainie and Stuart would need to demonstrate to the court that they meet the criteria under s.54 of the Human Fertilisation and Embryology Act 2008 (HFEA 2008), which includes a provision that the court is satisfied that the surrogate has received no money or other benefit (other than for expenses reasonably incurred) for carrying the child [s.54(8), HFEA 2008]. Whilst Stuart initially refers to the £10,000 as money for expenses, it becomes clear when Rainie approaches Tiffany that Rainie and Stuart are offering Tiffany the money as remuneration. Indeed, Rainie tells Tiffany that she will get to “walk off £10,000 better off” and Stuart later suggests that Tiffany can use the money to go on vacation or buy her husband extra trainers. There is no discussion about who will pay for the various expenses related to pregnancy, from pre-natal vitamins to maternal clothes.
Despite what the statute says, payment does not mean that the court will not grant the parental order. Pursuant to s.54(8) of the HFEA 2008, the court can retroactively approve payments to surrogates like Tiffany and consistently do so if it is in the child’s best interests that a parental order is made in the intending parent(s)’ favour, provided that the amount is not an affront to public policy. However, there is a chance (albeit a remote one), that the court would view the payment to Tiffany as too low and therefore exploitative. Surrogates in the UK are generally paid in the region of £12,000 – £18,000, though there is no set figure.
Secondly, there is the issue of Tiffany’s young age (17). Although the HFEA 2008 does not stipulate a minimum age for surrogate mothers, the majority of fertility clinics have their own policies that require surrogates to be over the age of 18. There has been some confusion in the media, with viewers convinced that surrogates need to be over the age of 21, but this is incorrect; 21 is the age stipulated by some surrogacy organisations (such as Brilliant Beginnings) but are internal guidelines rather than statutory law. It is also worthwhile pointing out that at 17, Tiffany is still technically a child, notwithstanding that she is married (!), though she is arguably Gillick competent and can consent to medical treatment.
Thirdly, in discussions with Keegan and Tiffany, Stuart reassures them that the arrangement will be “above-board” and there will be “contracts, a surrogacy advocate, the works.” Although intending parents and surrogate often have agreements setting out their expectations, surrogacy contracts are not enforceable in the UK, even if money has been exchanged [s.1A, SAA 1985]. Rainie and Stuart could not force Tiffany and Keegan to hand over the baby in the unlikely event that they did not want to; surrogates very rarely refuse to hand over the children that they have carried. It is also unclear what a “surrogate advocate” is referring to. If Stuart is referring to a surrogacy lawyer, he should be warned that it is a criminal offence for any third party (including a lawyer) to broker surrogacy agreements between a surrogate mother and commissioning parents for commercial purposes, i.e. for payment [s.2, SAA 1985]. A lawyer can, however, assist with the application for the parental order.
Finally, we know that Tiffany’s husband, Keegan, does not approve of the surrogacy arrangement. As indicated above, if he does not consent to the treatment (i.e. the assisted reproduction that results in the surrogacy), he will not be regarded as the child’s legal father [s.35, HFEA 2008]. Consent, however, is a matter of fact and therefore if there is any dispute around whether his behaviour amounts to consent, this will need to be decided by the court on a balance of probabilities. Even if he does consent to the treatment itself, pursuant to s.54(6) of HFEA 2008, both Tiffany and Keegan need to sign consent forms – namely the “Form A101A: Agreement to the making of a parental order in respect of my child. Section 54 of the Human Fertilisation and Embryology Act 2008” – to prove that they have freely, and with full understanding of what is involved, agreed unconditionally to the making of the parental order. If he (or Tiffany) refuse to sign this, there is a strong possibility that the court will not make a parental order and that Tiffany and Keegan will remain the child’s legal parents.
There are some moments in the episode that will resonate with surrogate mothers and intended parents. For example, Tiffany is clear that the money is not her (sole) motivation; she wants to help Rainie and Stuart achieve their dream of having a family. The episode also captures the heartache of wannabe parents dealing with fertility issues and the possibility that they might not have children. But the storyline as a whole underlines the need for anyone who is considering surrogacy to research it extensively and consult a solicitor or direct access barrister with expertise in this niche area of law. In Albert Square, it is still early days. In the next surrogacy-related episode, Rainie and Stuart spot Tiffany eating a fry-up in a diner and confront her about her poor dietary choices so the surrogacy might be off in any event.
Watch this space for another update…Posted on