Let women be paid to be sur­ro­gate mums, says top fam­ily judge

... and he in­sists it’s f ine to be­come a mother in your 60s

The Mail on Sunday - - News - By Sanchez Man­ning

BRI­TAIN should lift the ban on pay­ments to sur­ro­gate moth­ers, the for­mer head of the fam­ily court has told The Mail on Sun­day.

In a wide- rang­ing in­ter­view, Sir James Munby also de­fended the right of women in their 50s and 60s to have chil­dren be­cause ‘ to­day’s 60 is like yes­ter­day’s 40’. And re­flect­ing on dra­matic changes in so­ci­ety, he spoke of how those who have ‘gone down the sur­ro­gacy or same-sex mar- riage route’ are no longer treated as ‘peo­ple with horns’.

Sir James, the most se­nior fam­ily court judge in Eng­land and Wales be­fore his re­tire­ment in July, said se­ri­ous con­sid­er­a­tion should be given to abol­ish­ing re­stric­tions on com­mer­cial sur­ro­gacy.

Women are banned from ad­ver­tis­ing them­selves as sur­ro­gates or re­ceiv­ing pay­ment other than to cover ‘rea­son­able ex­penses’, but Sir James ar­gued that in re­al­ity a mar­ket al­ready ex­ists in the UK as pay­ments are fre­quently ‘dressed up as ex­penses’.

He added: ‘How is a judge sup­posed to as­sess whether the £10,000 paid, for ex­am­ple, is a gen­uine ex­pense. By and large even in the cases the court says it’s not a proper ex­pense, the judge waves it through be­cause oth­er­wise what do you do?

‘It’s prob­a­bly bet­ter to face up to re­al­ity and move to a proper sys­tem of reg­u­la­tion rather than pro­hi­bi­tion.’

Dur­ing 20 years at the High Court, Sir James, 70, said he had wit­nessed ‘an in­cred­i­ble change’ in fam­ily life.

Cit­ing a land­mark case in­volv­ing a trans­gen­der man, born fe­male, who wanted to be­come the first woman in his­tory to be legally reg­is­tered as the father, rather than the mother, on their baby’s birth cer­tifi­cate, Sir James said: ‘If some­one would have said ten years ago that, in a decade’s time, there’s go­ing to be a case in the fam­ily di­vi­sion on whether you can have a father with­out hav­ing a mother, peo­ple would have thought you were bonkers.

‘Ev­ery con­cept of what a fam­ily is, ev­ery con­cept of what a par­ent-child re­la­tion­ship is, is very much back in the melt­ing pot.

‘So­ci­ety is mov­ing on and the chal­lenge for law­mak­ers is what steps, if any, we take to ac­com­mo­date those changes into our le­gal frame­work.’

‘Ev­ery con­cept of fam­ily is back in the melt­ing pot’

He added: ‘Many peo­ple have ex­pe­ri­ence of peo­ple who have gone down the IVF route, sur­ro­gacy route or same-sex mar­riage route and they’ve re­alised that these are not peo­ple with horns. They are very nice peo­ple – they just hap­pen to have a dif­fer­ent life­style.’

Sir James also spoke about the con­tro­ver­sial rise in older women hav­ing ba­bies. The Mail on Sun­day re­vealed ear­lier this year that in Eng­land and Wales the num­ber of ba­bies born to women over 50 had risen by more than 300 per cent com­pared to 15 years ago.

Un­der NHS rules, women over the age of 42 can­not re­ceive free fer­til­ity treat­ment due to the low chance of suc­cess, al­though IVF clin­ics are free to set their own cri­te­ria.

Some crit­ics have ar­gued that hav­ing a baby at such an ad­vanced age is ‘ self­ish’ be­cause they will not be around to see their child grow up, but Sir James ar­gued the growth in life ex­pectancy means many over-60s will see their chil­dren into adult­hood.

‘Mod­ern 60-year-old grannies don’t look like grannies did 50 years ago,’ said Sir James, ahead of a speech at t he Progress Ed­u­ca­tional Trust an­nual con­fer­ence this week.

‘There is the ques­tion of whether it is right and fair to be mother­ing a child if you’re un­likely to live un­til it’s an adult,’ he said.

‘ But the ex­pec­ta­tion of life for women is 85 give or take. Well if it’s 85 you will com­fort­ably live to see your child be­come an adult if you have an ar­ti­fi­cial baby at 60. To­day’s 60 is like yes­ter­day’s 40.’

SPEAK­ING OUT: Sir James has seen ‘an in­cred­i­ble change’ in fam­ily life

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