HealthLawProf Blog

Editor: Katharine Van Tassel
Case Western Reserve University School of Law

Monday, August 3, 2020

‘Paid Surrogacy Abroad Does Not Violate Public Policy: UK Supreme Court’

Bernard Dickens (University of Toronto), ‘Paid Surrogacy Abroad Does Not Violate Public Policy: UK Supreme Court’, 150 Int’l J. Gynecology Obstetrics 129 (2020):

In April 2020, the United Kingdom Supreme Court upheld compensation for a woman whose negligent medical care had left her dependent on surrogate motherhood (SM) to have a family, even though SM might be by lawful commercial services in California, USA. Paid SM is criminal in the UK. Altruistic SM arrangements are legal, but unenforceable. The trial judge felt bound by precedent to disallow compensation for lawful commercial SM abroad, as contrary to public policy. The Court of Appeal reversed this ruling, since public policy is not immutable, and had changed. The Supreme Court agreed, acknowledging an evolution in popular attitudes concerning what a family is, and how it might be formed. Government policy was observed to accommodate SM in suitable cases. Movement was perceived towards legislative reform, and judicial recognition of paid SM arrangements abroad that are not exploitative or abusive of surrogates, commissioning parents, or resulting children was considered appropriate.

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