Videos: Part 3: Regulating contracts: Video 3: Selective reduction clauses

Introduction

Surrogacy agreements sometimes incorporate a clause called a ‘selective reduction’ clause, under which the surrogate mother is required to abort one of the foetuses that have been implanted if the biological parents so demand.  This clause is typically used where multiple embryos are implanted, and several of them develop to maturity.  The video deals with a one such clause in the US, where the surrogate mother refused to abort the child. 

Watch the video below, and consider the role of contract law in relation to surrogacy.

Commentary

1. The UK takes a relatively uncompromising attitude towards surrogacy.  Under s. 1A of the Surrogacy Arrangements Act 1985, contracts dealing with surrogacy are unenforceable.  It is not possible to enter into a legally binding surrogacy agreement.  As a result, the question of whether clauses of this type are enforceable does not arise.  As things currently stand, a surrogate mother is the child’s legal parent, and she can decide to keep the child after its birth if she so desires.

2. Because surrogacy arrangements are declared to be unenforceable by statute, they are not subject to the approach set out in Patel v Mirza [2016] UKSC 42.  In particular, a court has no discretion to consider other countervailing policy considerations, and it also has no discretion to consider whether denying a remedy is a proportionate response.  Both parties must be denied a remedy, even if doing so would be disproportionate.  This is a significant difference between the common law doctrine of illegality and specific statutory provisions making particular types of agreements unenforceable.

3. Whilst there is a strong movement towards amending the legal framework of surrogacy in the UK, there is no move to make surrogacy agreements legally enforceable, nor is there any move to permit surrogacy to be governed by contract.  The thrust, instead, is to create a legal mechanism by which the biological parents are automatically recognised as the child’s parents, rather than the surrogate mother.

4. Part of the reason for the anti-contract understanding of surrogacy in the UK is the view that surrogacy should be treated as a relationship between people, and not an exchange-based transaction.  As a result, the law should aim to facilitate altruistic surrogacy, rather than paid-for surrogacy.  Contracts, in this view, are not a suitable way of thinking about the relations underlying surrogacy arrangements, and the legal framework of contract law is not a particularly good framework for dealing with the questions raised by surrogacy.  The fact that surrogacy arrangements, in jurisdictions where they are legal, give rise to clauses such as the one discussed in the video suggests that there may be some substance in this view, and illustrates the limits of contract as a vehicle for organising social relations.