Non-commercial agencies and private surrogacy arrangements were not covered by the Surrogacy Arrangements Act 1985 although the law has done little to encourage such arrangements; s.1A of the 1985 Act (as inserted by s.36 of the Human Fertilisation and Embryology Act 1990) provides that surrogacy arrangements are unenforceable in law. Therefore, where for instance the surrogate mother changes her mind following the birth of the baby and fails to hand it over to the commissioning parents as agreed, the undertaking between them is not enforceable in law. Therefore in light of this and provisions such as s.27 of HEFA 1990, there is a clear bias against commissioning parents most likely driven by a desire to discourage surrogacy arrangements.
There is also a notable difference in the degree of regulation which exists in the context of adoption and surrogacy. Adoption is highly regulated. Unlike surrogacy, a placement, unless it is with a relative, cannot be made in private; it must be made through an agency. Where such an agency is involved, the law sets out eligibility rules for adopters. The 2002 Acts states that in order to be eligible the potential adopters must have been habitually resident in the UK for at least a year before the application is made and they must be 21 years of age. Both couples and single persons may adopt; a couple may adopt if they are married or “living as partners in an enduring family relationship.” Where single people are concerned, the court must be satisfied that that his/her spouse cannot be found or is incapable by reason of ill-health to apply or that the spouses have separated. The agency will then ascertain the adopters suitability, covering details of their relationship, health and lifestyle. A detailed report must be prepared for the agency’s adoption panel which makes recommendations about approval. When the agency decides whether to approve, they must take the panels recommendations into account. If the agency approves the applicants, only then will it consider whether there are children waiting for adoption who may be a suitable match. Any match must be considered by the panel and finally approved by the agency. Only then can a placement be made. As can be seen, the process is fairly rigorous and perhaps rightly so given that interests of children are at stake.
In the context of surrogacy, there appears to be more limited regulation. Whilst commercial surrogacy arrangements were outlawed altogether, private arrangements between strangers are not brought within the ambit of the law so that they potentially evade regulation by the law. However, the situation was somewhat improved following the enactment of the Human Fertilisation and Embryology Act 1990 which established a licensing authority, the Human Fertilisation and Embryology Authority, to regulate research and treatment in human infertility and embryology. Since ‘full’ surrogacy (and ‘partial’ surrogacy, where the sperm is inseminated in the surrogate mother) using donated gametes must legally be undertaken in a clinic, such medicalized surrogacy services are subjected to the full gaunt of regulatory provisions under the Act as well as HEFA, provided the clinic is licensed. s.13 of the HEFA 1990 provides that “a woman shall not be provided treatment services unless account has been taken of the welfare of the child who may be born as result of the treatment (including the need of that child for a father) and of any other child who may be affected by the birth.” The Code of Practice issued by HEFA provides guidance on, amongst other things, how the centres providing surrogacy-related services can meet the obligation to take account of the welfare of the child; it states that centres should offer counselling to the treatment recipient and donors, consider the “suitability” of all those involved who are potential parents of the child, which may include seeking relevant information from “the clients GP” and if necessary undertaking further inquiries of other individuals/authorities, and finally, centres should undertake a medical and social history of all those involves who are potential parents of the child.” Therefore, in theory, there should be some assessment of the fitness of the individuals involved in the surrogacy process as in the case of adoption. However, Douglas argues that, in practice the legal requirement to consider the child’s welfare does not appear to have made clinics change their mind about who they choose to treat and it is unlikely that prospective parents are subject to as rigorous a screening as prospective adopters are. Moreover, where surrogacy occurs outside a licensed clinic, as may be the case with ‘partial’ surrogacy where ‘DIY’ insemination is involved, this is really beyond the ambit of the law and therefore is unregulated. Therefore, as Cooke notes, “partial surrogacy and DIY insemination could be techniques enabling ‘unfit’ women, otherwise deemed unsuitable, to have children.” It is arguable, that although the law is correct in not prohibiting such practice, especially in light of fears that it would merely drive the practice ‘underground’ and in this sense further away from the law, more regulation would be desirable in the interests of all involved, especially given the complexities and potential danger involved in such a process.
In both the case of adoption and surrogacy, once the prospective adopters have been approved and matched with a child and where the child to a surrogacy arrangement has been born and handed over to the parents, legal status does not follow automatically; it is only acquired once further steps have been taken. In the case of adoption, an adoption order must be made, the effect of which, as stated in s.46, is to give parental responsibility of the child to the adopters, extinguishing the parental responsibility of all other persons (with the exception of a step father adopting their parents child). However an adoption order will only be made provided a number of conditions are met. Firstly the court must be satisfied that the parent or guardian of the child consents to the making of the adoption order. In accordance with s.52, such consent must be given “unconditionally and with full understanding with what is involved.” Consent may also be given in advance, under s.20 of the 2002 Act, at the same time a parent consents to a placement order under s.19, provided this consent has not been subsequently withdrawn. Where such advance consent has been given, the parent need take no further part in the proceedings. Significantly, however, even where consent is not given, a court may proceed to grant an order without consent if the parents/guardians consent has been “dispensed” with under s.52. Under the previous law regarding dispensation of consent, there were concerns that insufficient weight being given to parental views. In light of this, the 2002 altered the grounds upon which parents consent may be dispensed; consent may now only be dispensed where “the parent/guardian cannot be found or is incapable of giving consent” or if “the welfare of the child requires the consent to be dispensed with.” However Cretney & Mason contend that, in fact, this formulation appears to remove any possibility of taking account of parents’ rights or interests as, whereas before parents could take a different view of their child’s welfare and not be unreasonable, the court now imposes an objective view of what the child’s welfare requires. Nevertheless, where a person has given consent to adoption, they may not then oppose the adoption without the leave of the court which will only be given where there has been a change of circumstances. All such provisions intend to ensure that most decisions about consent are taken earlier in the process and to reduce delay by excluding objections by those who initially consent. However, given that adoption can constitute one of the severest forms of interference in a parent-child relationship, the issue of consent should not be rushed or viewed as an inconvenience.
Consent also plays an integral role where the transfer of legal status in the context of surrogacy is concerned. As has been noted, in cases of surrogacy, the surrogate mother, who is the gestational mother, is considered the legal mother of the child by virtue of s.27 of HEFA 1990. There are, however, a number of steps which the commissioning parents may take in order to acquire legal status. Prior to 1990, commissioning parents could only obtain parental responsibility through adoption. Many considered this process unduly complex and problematic for commissioning parents. The problem has been somewhat alleviated following the enactment of HEFA 1990 which introduced a new mechanism for commissioning parents to obtain legal status; s.30 enables the court to make a parental order which the applicants status of parents and extinguishes the parental responsibility of all others. The parents legal status is comparable with that obtained by adoption. Blyth asserts that the “criteria under which a s.30 order may be made are also analogous to existing adoption practices” and on this basis contends that “they are unlikely to provide a simple alternative to adoption for genetic parents of surrogate children.” The grounds upon which a court can make a parental order are; at least one of the commissioning parents must be genetically related to the child, the application must be made within six months of the birth of the child who must be living with the applicants, and both the father of the child (including a person who is the father by virtue of s.28 of HEFA) and the women who carried the child must have “freely and with full understanding of what is involved, agreed unconditionally to the making of the order.” The provision concerning consent certainly appears analogous to that relating to an adoption order. However there are no comparable provisions to those in adoption for the dispensing of the agreements; consent may be dispensed but on much narrower grounds; only where the parent cannot be found or is incapable of giving agreement. In this sense, the requirement for agreement/consent is certainly more stringent. Nevertheless, where the conditions for a parental order are not made out, the status of parenthood can still be acquired through adoption. Where neither a parental order or adoption are available, then commissioning parents may secure their position through a residence order.
Once the adoptive parents and/or commissioning parents have acquired legal status so that they raise the child, the issue of secrecy and of access to information about birth arises in both surrogacy arrangements and adoption. Although traditionally, adoption was considered a highly secretive matter, with many adoptive parents choosing not to tell their children the matter now tends to be more openly acknowledged. This change in attitude has been mirrored by a greater access for adopted persons to information about their birth. Whilst at one time an adopted person had no right to access their original birth certificate, the 2002 Act states that adopted adults will be able to obtain details from the adoption agency in order to access their original birth certificate and they will have a right to copies of specific documents from the court which made the order. Agencies may, however, withhold identifying information by seeking an order from the court. The Children Act 1989 also required the Register General to maintain an Adoption Contact Register which provides a safe and confidential manner for birth parents to assure an adopted person that contact would be welcome and give a current address. An adopted person who has sufficient knowledge about their birth may also register their wish to contact relatives. This facilitates the exchange of information and contact. By contrast, surrogacy and, more generally, assisted reproduction, is informed by greater secrecy. Children born as a result of gamete donation, for instance, are denied identifying as well as non-identifying information about their genetic parents for the convenience of the donor. However this is only a problem in the context of surrogacy for those born as a result of partial surrogacy where the sperm, for instance, may have been donated. In such instances, information about the gestational mother (who is likely to be also be the childs genetic mother in cases of partial surrogacy) will presumably appear on the original birth certificate, which a child, who is subject to a parental order, may access. In cases of full surrogacy, it is questionable whether a child has as strong a case to ascertain the identity of his gestational mother. Therefore, ultimately, the need for access to information in the context of surrogacy may be exaggerated.
Unlike surrogacy, which has only really come to the fore in the UK with the advent of assisted reproductive technology, adoption is an institution which obtained legal recognition in 1926 and indeed it is questionable whether this age old institution is still suited to present society. This question can be more appropriately addressed if we assess the needs of present society.
Adoption was initially conceived as a means of solving the embarrassment of single mothers and at the same time resolving the problem of infertility by placing the ‘illegitimate’ children with infertile couples. According to Lowe, in 1968, baby adoptions accounted for three-quarters of all adoptions and approximately one in five illegitimate children were adopted. However, with the increased availability of contraception, wider acceptability of abortion, advent of the welfare state and then end of the stigma of single parenthood fewer babies are now relinquished for adoption. The need for adoption in toady’s society is different. With the increasing rates of divorce and breakdown or relationships, it is now usual for children to be cared by persons other than their natural parents; therefore, as Herring notes, at least half of all adoptions now involve step-parents adopting their partners children. Even more significantly, however, the focus appears to be on the adoption of children of older children from state care. Therefore, in light of such a notable change in emphasis, it is indeed questionable how well the traditional institution of adoption developed in 1926 is suited to the needs of present society. However, in line with the change in emphasis, the institution of adoption itself has evolved, particularly by virtue of the Adoption and Children Act 2002, and therefore it has attempted to adapt to the needs of present society. As Cretney & Mason contend, the 2002 Act “seeks to bring Adoption in from the cold and enable it to reflect the concept of adoption as primarily being one aspect of provision for child care by the community rather than primarily a matter of transferring a relinquished child from one family group to another.”
In present society, those interested in achieving parenthood are not only likely to be married couples, but also unmarried couples and those in homosexual relationships. The 2002 Act recognised this fact by permitting any couple, whether married or not, to apply for adoption, thereby allowing unmarried couples and those in same-sex relationships to adopt. In this sense, adoption is suited to present society as it reflects the fact that a variety of family forms, distinct from the traditional nuclear family, may exist and be a suitable environment for a child. This is a pertinent example of the way in which the institution of adoption has adapted to the needs of present society. However it is arguable, that in the small proportion of cases which arise today where those who are infertile or unable to conceive naturally wish to achieve parenthood, adoption may still not be the most appropriate solution. The advent of assisted reproductive techniques has offered such persons various alternatives for achieving parenthood which may in fact be preferable to adoption in that they offer them the opportunity to be genetically related to the child. In this sense adoption may be seen as out-dated.
Whether adoption is suited to the needs of child in care is a more complex issue. Certainly the traditional model of adoption, originally designed for very young children and based on the ‘transplant’ model i.e. that children would be transplanted from one family and inserted into another, does not appear suitable for the needs of children in this context; it provides too blunt an instrument. Where children are in care, adoption is usually pursued as the framework of permanent placement where attempts at rehabilitation have failed or unlikely to succeed; research appears to suggest that state care itself rarely provides the necessary security and that the well-being of older children can be improved through adoption which will provide them with a settled home life. Contrary to tradition, the children being adopted in this context are usually much older. The older the child, the more likely they are to be aware of their biological background and therefore, it has been suggested, that the more appropriate it is for such children to retain some contact with their natural parents. Therefore, if indeed at all, a more ‘open’ model of adoption is suitable whereby the parents may not only be involved in the selecting the prospective adopters for their child but would also maintain contact with the child following adoption. Although it strikes at the heart of the traditional ‘clean-break’ model of adoption, research suggests that adoption can succeed despite the continuation of contact with the birth parents. In fact there are clear indications as to the potential benefits of such a model for many adopted children and their families; some go as far as to say that where contact is not allowed “problematic behaviour and adoption breakdowns are more likely.” Although, as indicated, the 2002 Act makes some attempt to adapt the traditional model of adoption to the needs of children in care, it is in fact generally silent on the issue of contact so that the legal framework for providing contact will remain s.8 of the Children Act; the courts may make a s.8 contact order when making an adoption order. However, despite the advantages of contact which have been demonstrated by research, courts are generally reluctant to make a contact order when making an adoption order; the cases show a judicial consistency in regarding contact in adoption as being very exceptional and not something which the courts should order without the full agreement of the adopters as contact is often viewed as incompatible with the adopters’ complete parental responsibility. However this is likely to be a remnant of the traditional inclination to view adoption as a ‘clean break’ procedure.
However despite the claim that an adoption is still suited to present society provided that it is based on a more ‘open’ model, alternative mechanisms of acquiring legal status may be more appropriate, especially if such an open model of adoption is not embraced. One such alternative is long term fostering which would be suitable for those in child care who are need of a permanent placement but who do not wish to make the absolute legal break with their birth family associated traditionally with adoption. It has been observed that “an important difference between adoption and fostering seems to lie in the degree to which carers feel wholly responsible for the child.” Foster carers generally perceive their responsibility as share with the authority, in contrast with adopters, who often feel they have real control over the child. The 2002 Act, however, introduces a new legal status; special guardianship. This has been described as an “intermediate legal status” as it provides greater security than long term fostering, for instance, by removing the degree of social services supervision, but without the full status of adoption and the requisite legal separation from their birth parents. A special guardianship order essentially has a similar effect to a Residence Order except that the special guardian is entitled to exercise parental responsibility for the child. If an open model of adoption it not embraced, this may be more suitable for the present needs of children in care as it reflects that many are unlikely to wish to sever all legal ties with their natural parents which adoption necessitates.
