Q1) “Commercial surrogacy should be allowed in the UK because the commercial

surrogacy industry in India has serious implications for the right to health of surrogate
mothers.”

Critically discuss this statement. Refer to law, ethical issues and

academic debate.

Outline Answer

This essay question asks candidates to explore why commercial surrogacy has been prohibited in the UK
and whether this should be the case, given the health implications of the Indian commercial surrogacy
industry for Indian surrogates. Because this is an essay question, candidates have the freedom to “take a
position” with regard to the statement and particular credit should be given to students who engage with it
critically. Top marks should be awarded to any candidate who offers a compelling critique of the statement
and whose conclusions are well-substantiated.

Students should set the scene with some basics. Some or all of the following should be included:

- A brief definition of what commercial surrogacy is;

- A brief definition of what altruistic surrogacy is;
- Who uses it and why (same-sex couples/infertile couples to procreate);
- That it is an ethically sensitive topic, but allows a couple/individual to have a child of their own;
- That the prohibition on commercial surrogacy in the UK means that couples travel overseas to
places including India where commercial surrogacy is legal;
- But there are legal and ethical implications with the Indian commercial surrogacy market, especially
concerning women’s right to health;
- Are these concerns compelling enough to introduce commercial surrogacy in the UK?

These notes are not intended to provide examiners with exhaustive guidance. However, a good answer is
likely to contain references to some or all of the following points:

 A good place to start would be explaining that commercial surrogacy has been prohibited in the
UK since the Surrogacy Arrangements Act 1985 came into force. Candidates should point out
that the Act was a ‘panic response’ to the Baby Cotton case which involved the first international
commercial surrogacy arrangement in the UK (Re C (A Minor) (Wardship: Surrogacy) [1985] FLR
846). Candidates may discuss the moral outrage that the case invoked back in 1985 and explain the
contentious features of commercial surrogacy (payments beyond reasonable expenses and a legally
binding contract).
 A good answer is likely to explain why commercial surrogacy is perceived as a contentious issue.
Answers may refer to the exploitation of surrogates (especially women from poor economic and
social backgrounds) and/ or the commodification of children (i.e. is surrogacy ‘baby-selling’).
 A good answer is likely to refer to the relevant statutory provisions in the Surrogacy Arrangement
Act 1985 and the Human Fertilisation and Embryology Act 2008 that show commercial surrogacy
is prohibited in the UK:
-S1A Surrogacy Arrangements Act 1985 (surrogacy arrangements are unenforceable).
-S54 (8) HFEA 2008 (surrogates must not be paid more than reasonable expenses).
 A good answer is also likely to explain that although commercial surrogacy is prohibited in the UK,
altruistic arrangements are permitted. References to s.2 of the Surrogacy Arrangements Act
1985 might be made.
 A strong answer is likely to refer to the Human Fertilisation and Embryology Authority’s ‘Altruism
Agenda’ as a possible reason for why the law prohibits a commercial model. Candidates may
compare the altruistic model of surrogacy with the HFEA’s policy on egg and sperm donation. An
excellent answer will challenge the altruistic model and refer to some of the feminist arguments in
favour of a commercial model. Reference to academic commentary may include Folbre and Nelson
(see below).
 A good answer may also refer to the . Candidates will note that the majority were opposed to
any form of surrogacy and these views have had some influence upon current legislation.
 A strong answer will refer to the minority views in the Warnock Report 1984 (Greengross and
Davies). Candidates may articulate that the minority foresaw problems with prohibiting surrogacy.
Namely, that commissioning couples would enter into “DIY” arrangements. Good candidates will
point out that this concern has materialised and UK couples now enter into internet arrangements
or go overseas to places like the US or India.
 Candidates also need to address the health implications of the Indian commercial surrogacy
market. A good answer will explain why UK commissioning parents use India as a place to find a
surrogate mother. Answers may refer to the following factors: surrogacy in India is cheaper than
the US, English is spoken, fertility clinics offer ‘packages’ to parents that cover accommodation
costs and regulation is relaxed.
 Candidates may refer to the The Assisted Reproductive Technologies (Regulation) Bill 2010 which
is not yet in force.
 A good answer will define ‘the right to health’ in legal terms. Answers may refer to Article 12 of
the Convention on the Elimination of All forms of Discrimination Against Women (CEDAW)
which requires states to ‘ensure access to healthcare services, including those related to family
planning and, more specifically, to ensure to women appropriate services in connection with
pregnancy, confinement in the post-natal period, granting free services when necessary, as well as
adequate nutrition during pregnancy and lactation.’ Similarly, answers may also refer to Article
 12(1) of The International Covenant on Economic, Social and Cultural Rights (ICESCR) which
states that, ‘The States Parties to the present Covenant recognize the right of everyone to the
enjoyment of the highest attainable standard of physical and mental health.’
 A good answer will provide evidence that the Indian commercial surrogacy industry poses
problems for the health of surrogate mothers. Evidence includes the UK case law, such as AB v
CD (Surrogacy - Time Limit and Consent) [2015] EWFC 12 where there were concerns with the
surrogacy contract and the limits it posed on the surrogate’s ability to manage her health during
her pregnancy and make decisions about how the twins were to be delivered. Evidence also
includes ethnographical observations of the lived experiences of Indian surrogates. Reference
to the SAMA Report may be made (see below). Candidates may also refer to news reports (e.g.
Premila Vaghela, a 30-year-old surrogate mother, died while waiting for a routine examination at a
hospital in Ahmedabad. The eight-month-old foetus meant for American intended parents
survived).
 An excellent answer will consider Alison Bailey’s ‘reproductive justice’ model which she applies
to Indian commercial surrogacy. Answers should refer to the three components that make up this
model (reproductive health, reproductive rights and reproductive justice).
 A good answer will apply the three components to the Indian commercial surrogacy industry.
For reproductive health, candidates may refer to the long/short term health implications/risks
of commercial surrogacy. Examples include India’s pregnancy mortality rate, the risks associated
with multiple embryo transfers and the risks associated with planned caesarean deliveries for
surrogate mothers. Candidates may also refer to the mental health of Indian surrogates.
 For reproductive rights, candidates may explain that this is a legal-advocacy based framework
which aims to assess how a law/practice affects the reproductive rights of the surrogate mother.
Reproductive rights include privacy, autonomy, the right to make a choice etc. Good candidates
may use the ethnographical observations to argue that these rights are not protected by current
surrogacy regulation/practice in India. For example, medical practitioners do not ask the surrogate
for consent to treatments.
 For reproductive justice, candidates may explain that this framework is about using grass-
roots/local organisations to help combat reproductive oppression. Candidates may refer to SAMA,
an organisation in India that deals with reproductive rights issues.
 A strong candidate will show an understanding of where the reproductive justice model originates
from (‘US women of colour in the early 1990’s) and that it was used to combat reproductive
oppression in the context of abortion and forced sterilization.
 A good answer will explain that the model can be used to identify areas of reproductive
oppression. Excellent candidates may argue that a ‘health’ focus is better than focusing on the
morality of Indian surrogacy. Alternatively, strong candidates may disagree and argue that a ‘health’
focus is too narrow.
  After discussing the health implications of the Indian commercial surrogacy industry, a good
answer is likely to reflect on whether commercial surrogacy should be introduced in the UK
instead.

Conclusions

 A good answer may conclude that introducing commercial surrogacy in the UK will reduce the
numbers of commissioning parents using the Indian commercial surrogacy industry, but wider
issues need to be tackled too (i.e. poverty, wages).
 A good answer may also conclude that allowing commercial surrogacy in the UK would cause the
same health problems identified by the reproductive justice model.
Q2) “The regulation of child participation in medical research is right to focus more on
the protection of research subjects than on the need to develop treatments and
therapies for children.”

Critically discuss this statement.

OUTLINE OF ISSUES

‘The regulation’ – outline relevant legal and ethical frameworks, such as:

Students should refer to relevant provisions of the Medicines for Human Use (Clinical Trials
Regulations) 2004 (‘CTR 2004’) and the New Regulation 536/2014:

 CTR 2004:
o Conditions and principles that apply in relation to a minor (under 16 years),
Schedule 1 Part 4.
Regulation No 536/2014:
o Article 32: Clinical trials on minors.
 CTR 2004:
o Conditions and principles that apply in relation to adults who lack capacity,
(focusing on those aged 16-18 years for the purposes of this lecture), Schedule 1
Part 5.
Regulation No 536/2014:
o Article 31: Clinical trials on incapacitated subjects.

Students should make reference to the Mental Capacity Act 2005 (‘MCA 2005’) and how it
applies to all ‘intrusive research’, which does not fall within the remit of the CTR 2004.

The common law should also be noted: medical research involving children that does not
qualify as a clinical trial under the CTR 2004, and is not a case of ‘intrusive research’ involving
young persons aged 16-18 years under the MCA 2005. The Simms case about experimental
treatment can be discussed as the closest ‘comparator’ we have in terms of considering how
a court might deal with a case of research that falls within the remit of the common law and
apply the best interests test.

Professional bodies and guidance that can be referred to includes:

 Royal College of Paediatrics and Child Health (RCPCH)

 Medical Research Council (MRC)
 General Medical Council (GMC)
The ‘need to develop new treatments and therapies’ for children – Students should refer to
reasons and justifications provided by medical practitioners and others about ‘the need’,
noting the basis of such reasoning and justifications and how arguments have been made.

Protection v. need to develop new treatments and therapies?

Students should note and discuss the language of

- ‘subject’ (rather than ‘participant’ or ‘patient’) and

- ‘children’ (rather than ‘child’); individual child and community of children

Students could consider research scandals and examples of abuse in the name of medical
research in the past (eg: Nuremberg, USA research scandals)

Students could refer to relevant academic commentaries on these issues, such as:

- Appleyard, J., ‘Risks and benefits of research on children: developing an ethical

framework to meet children’s needs’, Clinical Risk 14 (2008) 215-217
- Harrington, J., ‘Deciding best interests: medical progress, clinical judgment and the
“good family”’, Web Journal of Current Legal Issues 3 (2003), 1-12

…‘rightly’ focuses on protection ‘more’

Students could refer to examples from professional guidance, legal and ethical frameworks,
noting key ethical principles about protection.

Students can engage in discussion about the question of justifying ‘non therapeutic research’
(NTR) with children, and focusing on the type of ‘case example’ where a child suffers from a
particular illness or condition but research participation will only benefit future children and
not the individual child participant. A good answer might consider the following points:

- Clinicians are faced with a dilemma: untested interventions endanger patients, but
using only tested interventions severely limits treatment options.
- In disease processes specific to children, or in developmental matters, the child is
often the most appropriate, if not the only, person who can provide answers to
questions posed by medical researchers.
- The law’s position on participation in NTR in the UK largely remains “unchartered
waters”, given the absence of any significant or relevant case law on this issue.
(Elliston, S., The Best Interests of the Child in Healthcare (London and New York:
Routledge-Cavendish, 2007), at p. 202)
- Guidance from the different professional and regulatory bodies within the UK use
concepts of ‘risk’, ‘harm’, ‘benefit’, ‘interests’, and ‘best interests’ to describe the
circumstances in which it would be appropriate to involve children in non therapeutic
research (NTR): RCPCH, GMC, MRC
A good conclusion clearly refers back to the question or statement, and students should state
“their position” based on the points and issues they have chosen to engage with in their
critical discussion.
Q3) “New reproductive technologies such as ectogenesis (artificial wombs) and
womb transplantation will revolutionise reproduction and further eliminate
gender inequality in this context. They are prospects to be welcomed.”

Critically discuss this statement.

OUTLINE OF ISSUES:

•Students will not at present natural pregnancy does not allow for great gender equality –
during natural (in vivo) pregnancy women have the paramount say because her autonomy is
engaged. Technologies such as womb transplants that can be used to allow men to gestate or
ectogenesis which allow for in vitro gestation in a neutral location would dramatically alter
this.

Students should explore whether these technologies “eliminate gender inequality in the
reproductive stakes” and whether “They are prospects to be welcomed”.

They may limit their answer to one of the technologies and this is fine.

Students may note that rather than allowing for greater gender equality they may be seized
to offer greater protection to fetus and curtail gamete progenitors rights eg law on abortion
and note that it is clear that while English law bestows no rights upon the fetus , the foetus
(especially viable) foetus have long had the protection of the criminal law in England and
Wales. As far back as 1803, procuring the miscarriage of a woman who was ‘quick with child’
was a statutory offence subject to capital punishment. Lord Landsdowne's Act 1828 -
Preserved criminal offence as above, but changed penalty from capital punishment to
imprisonment, transportation, or whipping. The law remained the same until 1861 when
sections 58 and 59 of the Offences Against The Persons Act 1861 made it a criminal offence
for any person to do an unlawful act with intent to procure a miscarriage either in oneself or
another. Importantly, note OAPA remains current law - The Abortion Act 1967 (which only
applies in England, Scotland and Wales) merely created a series of defences in relation to
abortion and post viability much harder to attain an abortion.