Laws of Eve | Silence on surrogacy breeds concerns

Persons who have a strong desire to have children, but have fertility problems, are usually anxious enough without having to face the additional concern that one of the increasingly popular solutions to their problems (surrogacy) is fraught with legal uncertainty. While many countries around the world have long debated the intricacies of surrogacy and framed laws to guide the users of the process, in Jamaica, we have not even begun the discussion.

Some of the questions that the Jamaican legislators will need to answer are:

1. Will we accept that surrogacy is not contrary to public policy? And, if so, what form of surrogacy will be lawful, given the fact that there are commercial and altruistic forms of surrogacy? There are moral debates as to whether a woman should be compensated for carrying a child or whether the surrogate should be reimbursed medical and other reasonable expenses for doing so.

2. How will parental rights be determined as between the surrogate and the intended parents? The question of who is recognised as the parents of a child is usually answered by confirming the identity of the woman who delivered the child and the man who declares that he is the father. However, surrogacy presents new questions because, in the case of traditional surrogacy, the surrogate’s egg is artificially inseminated with the father’s sperm and, after delivery of the child, she hands him over to the intended parents. In this case, the surrogate will be the biological mother of the child. In gestational surrogacy, however, the surrogate may be artificially inseminated with an embryo comprised of the egg and sperm of the intended parents, so the child will have no biological characteristics of the surrogate. In that scenario, will declaration of parentage be adequate in Jamaica, or will the intended parents have to adopt a child who is born to a surrogate?

3. How will breach of a surrogacy contract be determined, if the surrogate refuses to hand over the child she has delivered to the intended parents with whom she signed a contract? Further, what should happen if the intended parents refuse to accept the child after he is delivered by the surrogate?

There are many other questions, but the overarching concern is that Jamaica is not ready to answer these or any of other questions that technological advancement in the area of in vitro fertilisation present.

One very interesting case that was decided in the UK Court of Appeal – XX v Whittington Hospital NHS Trust [2018] EWCA Civ 2832 – demonstrates how much more complicated the issues surrounding surrogacy are becoming. Mrs X sued the hospital for negligence in failing to detect and treat signs of cancer that had appeared in tests she had carried out as far back as 2008. She developed cancer and, among other things, the treatment led to infertility. The hospital admitted negligence and Mrs X was awarded damages.

Mrs X’s evidence was that she had plans to have four children and, prior to starting cancer treatment, she harvested and froze 12 eggs. She claimed the compensation for expenses to be incurred for surrogacy in England and in California. The trial judge accepted evidence that only two viable pregnancies may be possible from the harvested eggs, that it was more probable that surrogacy would occur in England, rather than in California, because commercial surrogacy was contrary to public policy in California. Some aspects of the claim were therefore limited or refused.

Mrs X appealed against that ruling and the appeal was granted because the Court of Appeal held that there should be no distinction between ‘own egg’ and ‘donor egg’ surrogacy, so the question of the viability of Mrs X’s own eggs should not determine the issue. Further, account should also be taken of surrogacy expenses in California, because there is no public policy bar to the recovery of damages for the costs of commercial surrogacy in California.

In fairness to all persons who are considering surrogacy or other fertility treatment in order to have children, silence is a painful and confusing response.

Sherry Ann McGregor is a partner, arbitrator and mediator in the firm of Nunes Scholefield DeLeon & Co. Please send questions and comments to lawsofeve@gmail.com or lifestyle@gleanerjm.com.