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Monday, June 8, 2015

Surrogacy law a child of our times

A British lawyer has slammed Britain’s “inhumane surrogacy laws”, following a decision in the High Court to take a one-year-old girl from her surrogate mother and give her to her gay parents.

The case in question involved a 43-year-old Romanian woman who two years ago struck a deal with a male gay couple. The woman conceived via IVF using sperm from one of the men, only to decide during the pregnancy that she wanted to keep the child. Following the birth the case escalated to the courts, and ended just last month with a judge of the high court ordering the woman to hand over the child to the gay father.

Well-known British solicitor and legal analyst Jon Holbrook says that “something is seriously wrong with the moral compass of our policymakers.”

Holbrook argues that bearing a baby in utero is a morally significant fact that courts should take into account. It is a gross injustice, he argues, to ignore the intense psychological and emotional bond that arises from childbearing:

“The fact that the mother has carried the baby for nine months and given birth to it gives her no right to resist a residence application from the commissioning father … The law on surrogacy now treats the birth mother as little more than a vessel – and that is inhumane…”
Holbrook sees the current state of the law as “the product of a discourse of misplaced equality and contractual rights that flattens the moral landscape”:

“The notion that a mother can have rights is anathema to today’s policymakers, who have been schooled in the discourse of equality, as now ratified in the Equality Act, to reject instinctively any form of differential treatment on the grounds of sex.”
He argues that we need to rethink the contractualism of surrogacy laws like those in Britain to take into account the emotional complexities of surrogacy.

“Given that the mother had not caused her child any serious harm, shouldn’t the law have accepted the mother’s right to raise her child? Is it now the case that a surrogate mother faces the possibility of enduring emotional anguish unless she is wealthier, more articulate, more composed, more politically correct and more in touch with the latest views on parenting than the commissioning parents?”
Holbrook closes by arguing for a return to moral and philosophical approach to surrogacy, rather than a clinical and contractual legal approach.


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