Dr. Andrea Mulligan:

They are great questions. A problem with surrogacy generally is an absence of data. Often, we are just dealing with court decisions. A problem with that is we are often only dealing with cases that are actually litigated as opposed to settled outside of court, so it is very hard to get to the nub of how many surrogacy arrangements go wrong. It is possible that the Human Fertilisation and Embryology Authority in the UK might have the statistics on it, but I am not sure that it does. Essentially, the overall understanding is that there are not that many that go wrong. The overwhelming majority of surrogacy arrangements go as planned, and they are a small number. We do come across headline cases. The first US case was called the Baby M case, which was a change of mind case involving a traditional surrogate, that is, somebody who was genetically related to the child, which as I understand is completely off the table here. That also changes the data a little bit, because historically, traditional surrogacy was much more common. Interestingly, in the UK it is still quite common. It is more likely that there would be a change of mind there, because the woman is genetically related. That confounds the data a little bit. There is a family research centre at the University of Cambridge, and it is doing a longitudinal study of children born through surrogacy. It looks at them aged seven, 12 and so on. The data from it are brilliant. It is really good on identity and all those issues. It probably does not deal with people who change their minds because the people who are in disputed situations do not necessarily want to get involved in a longitudinal study about surrogacy. My answer is that it is very hard to know, but people think it is a small number.

The other question related to models of surrogacy. A difficulty is that not that many states regulate it. Some states only regulate it domestically and do not allow foreigners to avail of it at all. Some states actively do allow foreigners and - this is delicate - there may be an intention to draw in surrogacy tourism if they do that. Those may not necessarily be what we want to model the law on.

My own view is that the English model is quite good. It has been working for a long time. A really great feature of the English model is that open surrogacy was the default. It is very common for people to know their surrogates well. There are a lot of non-profit surrogacy agencies in the UK that will match people up with their surrogate and they have always advocated a position of openness. That is an interesting contrast to donor-assisted reproduction where, when that started out, the general practice was that parents would not tell the child that they were donor-conceived, whereas the culture in surrogacy has always been more toward openness. To my mind, that is a very good thing. There is a lot to be learned from the practice in the UK as well as from the law.