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Wednesday, March 18, 2015

A surrogacy conundrum that didn't need to be

A single man has become a father. Nothing wrong in this, you might suppose. Single women plan and deliberately create babies, or freeze their eggs, sometimes to avoid that annoying ticking biological clock. Other children become the child of a single parent, through tragedy or divorce. The fact this was a man makes this unusual. While we may all have opinions about whether being raised by one parent rather than two is optimal, we can probably all agree that this depends on many other factors, including the availability of other support that the (single) parent has.

The child in question was in fact carried by his own grandmother, who acted as a gestational surrogate for the embryo created – in an IVF clinic – using a donor egg and her son's sperm (reported in BioNews 793). So not only did this case cause ripples of alarm because a single man deliberately created a child using a surrogate, but also, for many (I watched numerous comments roll in on Twitter, for example), there's a gut 'yuk' feeling: 'a mother having her own son's baby?! Gross!' Some of the headlines didn't help - The Daily Mail went with, for example, 'Woman gives birth to her own son's IVF baby: Now he wins right to adopt child who is his brother' (1).

But that's not what this is. A woman carried her own son's baby, and that's different. The child is only that man's 'brother' because an outdated and questionable legal provision, designed to cope with entirely different situations, says he is. There is no hint of an incestuous relationship here (2). A single man (or a gay male couple) can't have a genetically-related child any other way than by using a surrogate. No-one really batted an eyelid when Elton John and long term partner David Furnish had their children using surrogacy. No-one even noticed that this year's Oscars host Neil Patrick Harris and his partner have children by surrogacy. Surrogacy for gay men – that's been done. And while it will sometimes be a difficult journey, there is no doubt that in this country at least we have accepted and enshrined into law the fact that two gay men can become parents this way – married, in a civil partnership, or otherwise.

But surrogacy for single men - that's new. Yet I don't really see why people would have a problem with it per se, other than to perhaps think 'I hope he's got a lot of support around him, as that's going to be tough', in the same way we would think for a single woman, or even a really young couple, just starting out. Kyle Casson, the man in question, is halfway through his twenties. That may cause questions about whether he could truly know by then that he wanted to do this - and do it alone - but that is, crucially, his choice to make.

There is no suggestion that Kyle pressurised his mother in any way into doing this for him. Another female family member had been lined up to carry the baby (would anyone care so much if it had been a cousin, an aunt or even a sister who did this?) but was unable to in the end for health reasons. It is not uncommon for female family members to act as surrogates, and there have been examples of mother-daughter surrogacy in the past. Anne-Marie Casson and her husband discussed it, thought they would like to help (and to become grandparents), and offered.

Not only that, but the fertilisation and implantation of the embryo was done using IVF, in a licensed clinic. The clinic has a legal obligation under the Human Fertilisation and Embryology (HFE) Act to consider the welfare of any child to be born following such procedures. Prior to the amendments to this legislation in 2008, the clinic would have had to have in mind the child's 'need for a father' as part of that assessment (not that this was a problem here, and the need for a mother was never specifically written into the law) – this is no longer the case, however.

When this arrangement took place, the clinic staff making the decision to treat or not treat would have had to think about the child's need for 'supportive parenting'. Essentially, this is a consideration of the putative parent's ability to cope, and of the support network - family and friends - they have around them. Notwithstanding questions about whether such an assessment ought to take place at all, given that fertile people aren't assessed in the same way before they have children, Kyle Casson's circumstances would have been thoroughly considered. The clinic went ahead with the treatment responsibly and presumably much counselling was received by all parties concerned.

But that was by no means the end of the legal story. As the HFE Act makes literally no provision for a single person to become a parent of a child born via surrogacy via a parental order (a court order that transfers legal parenthood post-birth, but only when certain conditions are met – coupledom being one of them), Kyle had to apply to adopt his own son. Even though Anne-Marie Casson and her husband saw themselves as grandparents, they were in fact the indisputable parents of the baby in law.

And again the story doesn't stop there. While it is entirely legally possible for a single person to adopt a child, difficulties arise when that child was not yet born when the adoption was considered. This was complicated by the fact the child was in fact born through surrogacy, as the parenthood provisions of the HFE Act 2008 rendered Kyle a non-parent and the surrogacy itself when seen in that light looked like an arranged adoption, which is a criminal offence for all parties to the arrangement. The only way around this was if Kyle was a 'relative' of the child – and as the brother this meant he was able to adopt (this is also why he couldn't have asked a female friend to be his surrogate). Having worked around all this, Mrs Justice Theis DBE, in making the adoption order, was satisfied (as she had to be) that the child's 'lifelong welfare needs' were met by the order being granted (3).

This case highlights the fact that the law regarding surrogacy is inadequate and outdated. Though the legislation was rewritten in 2008, the public consultations that led to the reforms barely asked about surrogacy (4). In the small section dedicated to it, respondents were asked whether the right to obtain a parental order should be extended from married couples to those in civil partnerships or enduring relationships, but it was always unlikely that this change would not have been made, given changes to adoption law and the move to legislate for civil partnerships in the first place. Claims of discrimination would have been rife. But seemingly no-one gave a thought to those who wanted (or ended up having) to go it alone. It is unclear why this barrier is in place.

I have argued elsewhere that legal parenthood following surrogacy ought to be automatically vested with the intended parents. If this was the case, Anne-Marie Casson would not have been the legal mother of this child, and her husband would not have been the legal father. Kyle would have been the father (and also therefore not the brother). There would have been no legal mother - but given that having a father waiting is now something we don't have to specifically consider when offering treatment, why should it be different the other way around? Perhaps, also, a better law would mean that fewer people would need to look to family members to be surrogates for them - or need to go abroad for surrogacy, where different complications can arise (5).

If supportive parenting is what's needed, then the Cassons provide a good example of what exactly this can mean. They did everything right, from seeking legal advice before embarking on the arrangement, to having joint and individual counselling sessions, discussing the circumstances openly with family and friends and fully engaging with their social worker. Presumably, when the time comes, this child - now seven months old and very much wanted and loved by his father and grandparents - will be told all about it. It's unfortunate that the birth records of this child will be facilitating a lie - that he was adopted by his 'brother' - but at least the situation is resolved.


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