Where is the law for Surrogate Mothers? Food for Thought.

Actually, in Mauritius law and legislations pertaining to surrogate mothers are virtually inexistent. And whether Parliament fails to legislate or reformers would still be waiting until they come across to borrow UK legislations with a view to domesticate them, as usual. There would probably be more and more tourists who would use Mauritian surrogate mothers to have a child and there is a dire need to legislate.
The practice whereby one woman carries a child for another with the intention that the child should be handed over after birth (Warnock Committee 1984) is still unknown in our domestic law. According to the Bible, Sarai brought Hagar, a slave-girl, to Abraham who bore a child with her (Genesis chapter 16). Actually, there are two important legislations in the UK: The Surrogacy Arrangements Act 1985 and the more recent one, The Human Fertilisation and Embryology Act 2008.
According to the Surrogacy Arrangements Act 1985 (S.1(3)) ‘‘an arrangement is a surrogacy arrangement if, were a woman to whom the arrangement relates to carry a child in pursuance of it, she would be a surrogate matter’’. Despite surrogacy is legal (application is made within 6 months of the child’s birth and must have attained the age of 18, and the surrogate mother and her husband/partner must give their consent to the making of the order) it is not enforceable. S 1A of the Surrogacy Arrangements Act 1985 allows traditional parents to have a baby but there are serious and pertinent objections to surrogacy – (the surrogate mother would probably conceive unless she is paid- Re C (A Minor) (Wardship: Surrogacy) 1985 or the Kim Cotton Case: Baby-For-Cash affair, the use of one’s uterus for profit-making, damages to the baby whose bond with the carrying mother is held to be strong, commercial business coupled with human rights issues just to name a few).
In the overall there are risks, and as an illustration: who is the mother? Section 3(1) HFEA 2008 provides that “The woman who is carrying or has carried a child as a result of the placing in her of an embryo or of sperm and eggs, and no other woman, is to be treated as the mother of the child’’ and as per section 35 HFEA 2008 ‘If the gestational mother is married, her husband is to be treated as the father of the child (unless he did not consent)’’. And as per section 36 HFEA 2008 ‘If the gestational mother is not married, a man who meets the agreed fatherhood conditions under section 37 is to be treated as the father of the child’’.
And in case of disputes about upbringing of the baby, they are to be resolved by taking into consideration the child’s welfare, rather than the ‘contract’ (In the Matter of Baby M 1988 537 A 2d 1227 (NJ Sup Ct) and Re P (Minors) (Wardship: Surrogacy) 1987) itself.