Professor Thérèse Callus, expert in biomedical and family law issues at the University of Reading, explains the recent Law Commission proposals on reform of the law on surrogacy.
The Law Commission has recently published its recommendations and a draft Bill on reform of the law on surrogacy – a practice which results in the birth of approximately 400–500 babies each year. Although according to Department of Health guidance, ‘altruistic surrogacy is an established and legal way of creating a family in the UK’ and can be ‘a positive and rewarding experience’, it is not well understood by the general public (only 26% IPSOS poll are aware it is legal) and its regulation is widely recognised by stakeholders and judges as being unclear, outdated and generally unfit for purpose.
Surrogacy is the process by which a surrogate carries a baby for ‘intended parent(s)’ (either a single person or a couple) with the intention that the intended parent(s) will become the legal and social parents of the child. Commercial surrogacy is illegal so it is not possible to enter into a binding contract or to benefit financially from any surrogacy arrangements. However, privately organised surrogacy is legal in the UK and operates generally through non-commercial associations. The Law Commission’s summary of the practice is helpful.
It is important to stress that the Law Commission Report does not re-open the debate on the legality of surrogacy itself, nor does it oppose the continued prohibition on commercial surrogacy arrangements. Rather it addresses how to regulate the difficult issues raised by the practice which those involved have identified as being in need of better regulation and safeguards.
For example, who should be the automatic legal parents of children born through surrogacy? What should the birth certificate reflect? (See my comment on this in Bionews). Can a surrogate be paid or receive compensation for her gestational efforts, and if so, is there a risk of exploitation? How can international arrangements be dealt with? Is there a need for a dedicated regulator and surrogacy agencies, along with a national register of surrogate-born children for them to access information on their origins? Must there be a genetic link between the child born and at least one of the intended parents?
Some of these questions have been grappled with for years with the growing use of assisted conception more widely. My research has explored recognition of legal parental status in assisted conception– that is where third party intervention takes place in the conception process resulting in potentially a number of different people being involved in the birth of a baby – through donated gametes and genetic links; gestational and child birth processes; psychological and social parenting etc. My comparative research shows that different countries adopt diverse approaches but the law in the UK has tended to be broadly facilitative and progressive in legally recognising and regulating different ways to form families. However, surrogacy poses additional issues due to the nature of the practice, and the directly opposing ethical arguments held by some.
Under the current law, the surrogate is automatically the legal mother of the child (and if she is married, her husband will be the father unless it is shown he did not consent). The intended parents must apply to the court after the birth of the child for a parental order which will transfer the legal status of parenthood to them. Only ‘reasonable expenses’ can be paid by the intended parents to the surrogate who should not make a profit from the process.
The main criticisms of the current law are:
- the imposition of the legal status of mother on the surrogate does not reflect the parties’ intentions;
- the requirement to apply for a parental order through the courts is lengthy and costly and uncertainty on the conditions of such an order causes unnecessary anxiety and stress;
- the particular requirement that payments to the surrogate do not exceed reasonable expenses is unclear and inconsistently interpreted;
- there are few pre-conception safeguards to reduce the risk of conflict arising or to ensure that all the parties are informed of the current legal framework;
- there is no national register for children born to a surrogate to find out about their origins;
- and intended parents sometimes prefer to access surrogacy abroad because of the complexities and uncertainties in the current UK law, and may be in countries where women are more likely to be exploited.
The Law Commission proposes a new pathway which would provide for regulatory oversight of a stream-lined process focusing on pre-conception safeguards in enabling all parties to be informed of the potential consequences of the surrogacy, and where the interests of children to be born are considered. There would be non-commercial Regulated Surrogacy Organisations who would be involved in matching surrogates with intended parents, overseeing the provision of pre-conception checks, counselling and advice, and drawing up a written agreement setting out the parties’ intentions and expectations.
Crucially, the agreement would recognise that the legal parents from birth would be the intended parents, but with the surrogate maintaining the right to withdraw her consent for a short period after the birth. The intended parents would not have the right to withdraw from the agreement for them to be the legal parents.
In addition, there would be provision of a national register which children could access to obtain information about their origins. Access to information is set as for donor conceived children – 16 years for non-identifying and 18 years for identifying information. The reforms also include more detail on the types of payments which will be legal – essentially costs associated directly with pregnancy plus ‘modest’ gifts or a recuperative holiday for the surrogate after the birth. Any compensatory or salary-type payments are prohibited.
While each of the recommendations will need to be considered in-depth, the general outcome of the Report is one of balanced consideration of the interests of those most closely involved in the practice, as well as complex legal and ethical concerns.
The Law Commission’s proposals are undoubtedly an important step forward in offering more up-to-date regulation of an already established practice. While in need of further refinement following wider debate, they should be lauded as a good example of how law reform proposals can (and should) be informed by the lived reality of those people whom they will affect. It is not the final word on the matter, but a weighty contribution to a conversation on how to achieve better regulation. It is now for the Government to respond to the Report, and hopefully, for Parliament to engage with the complexities of each of the issues raised.