Legislative Aspects of Surrogacy

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Executive summary

Surrogacy is an increasingly popular arrangement that can be defined as when a woman holds and gives birth to a baby for another individual/ couple . The law surrounding surrogacy in the UK is anachronistic and desperately in need of substantial legislative reform to keep up with contemporary society. Even though the laws have marginally changed to protect the intended parents more than previously and we are seeing a more even shift of the balance of power in favour of the intended parents, whilst the UK appears to be making steps in the right direction, and proposals for reform are developing to protect all of the parties involved, this report reflects on proposals and suggests that amendments and clarity to the law needs to be made and recognised to make it better and work for all of the parties involved in the surrogacy arrangement, and protect the interests of the child involved, the surrogate mother and the intended parents.

The development of the law regarding surrogacy

Societal attitudes to perceptions of parenthood have changed dramatically since the 1980s, in light of modern technology and major advances in medical science such as IVF and various reproductive techniques, despite this surprisingly the law has developed at a seemingly slow pace and fails to reflect the evolving societal attitudes and acceptances of the new family structure regarding surrogacy.

UK surrogacy law first came in 1985 via the Surrogacy Arrangements Act, this was at a time where the UK was unfamiliar with surrogacy arrangements and entered unchartered waters. The law was extremely harsh and reflective of the lack of education in this area therefore the law was of a discouraging tenement.

After the case of Baby cotton, the first baby born as a product of a commercial surrogacy arrangement, this caused huge public outcry, which inspired a strong focus on banning commercial surrogacy arrangements and banning advertising in surrogacy. Section 2 of the surrogacy Arrangements Act makes it illegal for people to participate in surrogacy agreements in regard to a commercial basis. The SAA left a sense of legal vulnerability, discouraging surrogacy arrangements. It was hoped that this intentional framework would lead surrogacy to “wither on the vine”, however the opposite has occurred .

The HFEA 1990 was introduced mainly to protect surrogates’ rights, giving the surrogate mother the power to change her mind anytime freely before the parental order was given. , this led to the introduction of parental orders which move parenthood from the surrogate mother to the intended parents, obtaining the surrogates consent, making it easier than it was previously, and if satisfying certain criteria such as the applicants have to be married, 18+ etc. This recently was updated by the HFEA 2008, which gave more established rights to parents, and “moved with the times” making it more accessible as it allowed couples not in a marriage or a civil partnership to apply for a parental order when they couldn’t do so before, aligned itself with the new laws regarding same sex marriage, enabling same-sex people to apply for such parental orders. It also stated that surrogacy arrangements are unenforceable under the law . In addition, last year there was a recent amendment which now allows that one person to apply for the parental order provided that they are a biological parent of the child

The current law on surrogacy

Surrogacy is legal in the UK and surrogacy arrangements are allowed; however, they remain unenforceable thus they are not legally binding. The law currently states that the gestational mother is the child’s legal mother regardless of the genetic composition of the baby, the legislation clearly emphasises and states that no other women is to be treated as the mother of the child. If the surrogate mother is married or civil partnered, her partner/ spouse automatically becomes the legal parent of the child unless certain provisions do not apply.

The intended parents may apply for a parental order, conditional on meeting the statutory requirements, the parental order essentially makes them the legal parents in the eyes of the law Two applicants can make a parental order within 6 months of the birth of the child The court must be adequately satisfied that no money or benefit (apart from reasonable expenses) should have been incurred. The current UK law bans commercial involvement in surrogacy arrangements, furthermore, advertising surrogacy is also a criminal offence, however, there has never been a prosecution.

Pros and cons of the current system, proposals for reform and further suggestions

One of the positives of the current system is that members of the judiciary and legal professionals are recognising the need for change and reform and the system is of a fluid nature which therefore allows judges to be flexible and use their discretion in overriding the law and interpreting it in such a way that works that is more pro the best interests of the parties, when deciding matters of parenthood an example of this is through judicial case law such as the case of Re X, The judiciary have interpreted s54 rather widely and via statutory interpretation the court will attempt to promote the child’s welfare. Therefore, the judiciary adopt a rather liberal approach towards the legislative requirements and prioritise the welfare of the child. Also, when applying for a parental order the courts adopt the idea that the paramount consideration of the court should be the child’s welfare, also the welfare checklist is applied, which strongly suggests that this process plays a large role in protecting the children’s rights, and the best interests of the child is the primary consideration.

Another benefit of the current system is that acceptance and understanding of surrogacy is developing There are now guidelines that have been published

Also the law bans commercial surrogacy arrangements that use women and make profit out of the surrogacy, and therefore conserves the altruistic and non-profitable nature of surrogacy, this protects the interests of the child, and the surrogate mother, preventing her from exploitation, and is an effective way of regulating surrogacy in the UK .

It is recognised that the system offers little protection to the intended parents involved in a surrogacy arrangement.

Parental order

The current system may be deemed to give an unequal legal power balance in pro of the surrogate parents and neglecting the intended parents’ legal protection, and there is a clear risk that the intended parent wishes to retain legal parenthood.

The intended or biological parents can only apply for a parental order 6 weeks after the child is born, also they must be fully compliant with the legislative provision of s54 HFEA 2008 must have consent of the surrogate, be genetically related and follow relevant procedures. This is a rather time consuming, costly process which can have detrimental effects to all parties involved for example the child may be staying with the commissioning parents, fully integrated in their way of life, however the issue is that the intended parents are not protected and valued in the eyes of the law. If for example, there was an end of live decision to be made, the intended parent is unable to fulfil the consent requirement for medical treatment

Also, due to the time involved in legal proceedings, intended parents may have to wait for more than 6 months to be granted a parental order Furthermore, the parents may not have parental responsibility , which could affects situations for example such as applying for a passport on behalf of the child etc Furthermore, the status of a legal parent affects laws relating to child maintenance, inheritance and making the child a member of that persons family

Therefore, the current system does not protect the interests of the intended parents and is disproportionately pro the surrogates interests over the intended parents interests who can also be biologically related this fails to recognise the genuine practice and intentions of surrogacy arrangement which is altruistic in nature and not intended to become the legal parents. This causes also conflicts with the intended parents article 8 ECHR rights This is important to both the commissioning parents and the child. Previous case law such as Re J enforce the idea that legal parenthood is essential for both the adult and the child.

The law commission consultation proposes that parental orders are given to the intended parents at birth on the condition that they follow a new pathway as opposed to going to the courts after birth which simplifies it. This will also giving surrogates rights to object during a defined period, safeguards allowing the law to fully balance the rights of the surrogate and the intended parents well, adequately protecting them, counselling is also proposed here

This seems to protect the intended parents more as it allows the intended parents to be the legal parents from the time he or she is born, it appears to acknowledge that the law diminishes the autonomy of a surrogate who wishes to give up the child to the intended parents- she doesn’t want to be the legal mother. Therefore, it seems unnecessary that there is a post- birth opportunity to object after 5 weeks, or perhaps this should be reduced a bit more and this does not feel in line with what surrogates intend to happen. The surrogate should have other safeguards in place to protect the exploitation of women, so the intended parents deserve legal certainty If this is not possible, then there should be a reversal of the presumption of motherhood in the context of surrogacy

International arrangements

Whilst there is a lack of official statistics in this area, and we are unaware for certain the reasons for individuals going abroad in doing surrogacy arrangements, international surrogacy arrangements have a strong appeal due to the fact that they will be recognised legally as parents from birth and these countries have a more profuse approach compared to the UK, however the consequences of such can be problematic . This is likely due to uncertainty in the UK, and a lack of surrogates. International surrogacy clearly raises ethical concerns and issues, for example the risk in particular of exploitation of women and not fully getting the surrogates consent, this could also be due to language barriers when transferring the parenthood – lack of clarity surrounding this area of consent could be a risk of exploitation.

It has been suggested as a proposal that it is a good idea to allow strongly regulated commercial surrogacy arrangements, so they don’t risk travelling abroad, an even framework is needed to balance the risk of exploitation of the surrogate and the legal certainty from the parent Perhaps a good proposal would be that people are given good sources of information with healthcare providers nearby before they travel, to ensure they are aware about appropriate options before they travel, this could really protect all parties as they will be aware of the risks of it, also the medical risks to surrogates, in particular multiple embryo transfer, this is also in keeping with protecting the surrogate mother Also, I suggest that a large cross- cultural analysis and study is commissioned in regards to overseas surrogacy arrangements as we are currently unclear about the extent to this Overseas surrogacy is not good, and “jeopardises the welfare of the child in obtaining a parental order becomes more difficult” , children may be “marooned stateless” .

There are immigration issues where you have international surrogacy arrangements, and there is a limiting restrictive procedure for applying in the UK. The law commission has proposed reforms to speed up bringing back the child to the UK, UK nationality laws are extremely complex. Also, surrogacy should be taught in schools and sex and relationship education to further generate awareness Overseas arrangements should be discouraged. Regarding international surrogacy arrangements, and nationality approval is a very long and arduous process. So it is clear that the law does protect individuals parties interests to some extent, but it is inadequate, and needs further improving to best work for everybody.

It has been recognised that there is a need for an international agreement between countries to make the law regarding surrogacy parents more clear, it is unfair that the intended parents can be the legal parents overseas, such as in the USA, but when they get to the UK, their legal rights have been diminished, they have to go through a costly legal process, which is not in the best interest of the child or effective The law commission proposals state that regarding overseas surrogacy arrangements, there will be some that will be automatically recognised so the parents will be acknowledged as legal parents in the UK, However, if the child is born in a country that doesn’t follow the regulation, then there will have to go through the parental order way, but it will be easier for them to do this.

Laws such as ban on advertising of surrogacy, and slow processes make it appealing for people to take part in overseas surrogacy arrangements, as these may be perceived as more accessible Furthermore, there has been a proposal to abolish the restrictions on advertising, therefore lawyers may be able to charge for helping with surrogacy agreements, this seems counter-productive and may lead to a rise of commercial agreements

Regulation

There has been the suggestion of creating a regulated surrogacy organisation the issue of whether such organisations should profit is yet to be discussed. There is also the proposal in the recent Horsey report that we should consider the regulation of approved surrogacy organisations, to give protection and assurance to children, surrogates and intended parents, this may mean that certain checks/activities are mandated through these approved organisations, and also deters individuals from going overseas and entering potentially harmful/ exploitative surrogacy practices. However, cost implications for families should be borne in mind when considering this. At the moment there is no regulation of these organisations such as COTS, (the report surrogacy), the ethos of surrogacy in the uk is all about trust.

It suggested that there would be a code of practice, which condemned multiple surrogacy’s, perhaps there should be more focus on the ethics of surrogacy and the safety of the surrogate mother as there are known risks, for example if there are multiple surrogacies (Brazier review) In the proposals, the law commission state that there will be matching with a women in a regulated licensed clinic, however doesn’t really mention the ethics of the situation.

Lack of consistency

There also appears to be a clash in the law with the idea that when considering parental orders, are supposed to comply with the welfare of the child, and this must be the paramount consideration , this slightly disregards the s54 provisions when these have not been complied with, for example when expenses have gone beyond “reasonable”, and these have been paid to the surrogate, therefore the law is incoherent, and weakens the view of the law The inconsistencies identified are confusing, many parents may be deterred and question whether they meet the criteria for a parental order or not and feel they may be left without secure legal parenthood.

Commercial surrogacy

The commercialisation provisions are very clear, these include preventing agencies from profiting from surrogacy and restricts access to legal advice. A condition prior to allowing a parental order is that no money or other benefit (other than for reasonable expenses) is to be allowed unless allowed by the court. This is rather contradictory, as case law suggests that the courts may actually accept larger payments. The difference between compensation and payment needs to be further clarified The types of payments that the law permits is viewed as a large factor of whether the surrogacy is commercial or not. Although it is clear that agencies such as COTS cannot profit from surrogacy arrangements, the law in relation to payments to surrogates is exceedingly uncertain and vague also there is no definition of what expenses reasonably incurred are law commission Surrogacy arrangements at times may be perceived to have a commercial element. Whether paid surrogacy is baby-selling is unclear The UK has a strong stance against commercial surrogacy

It would make sense to simply have one primary piece of legislation, that encompasses all of these secondary pieces of legislation that are being used to circumvent its way around a poor system- for example the fact that the child’s welfare is the paramount consideration when granting a parental order. The law needs clarifying and examples of good practice is that recent reform document.

Since commercial surrogacy agreements are not enforceable in the UK, and this is a factor why many go to other jurisdictions, as there commercial surrogacy arrangements is guaranteed to make the surrogate the legal parent, there are also ethical considerations about surrogacy acting as a business model, and whether the people acting as surrogates do so of their own free will, or whether the agencies always act in the best interests of the surrogate. There is no consistent international convention to do with surrogacy arrangements without protection

Maybe make surrogacy agreements legally binding agreements can give more certainty of mind for the intended parents.

Conclusion

There are clearly parts of the law that simply do not appear to work, that are overrun in practise, this needs to be resolved, legal responsibility and parental orders are important, reforms need to be made.

The law reform commission consultation report appears to be very encouraging, and a positive step in the right direction, as it is a really good idea that participants have greater informed information, and the intended legal parents can allow them to be the legal parents from the outset. Surrogacy interest has really increased, legislation must be able to be” empirically grounded, facilitative and sensitively encompass the increased use of international arrangements. Law often intertwines with the conversations we have as society, therefore the more we deliberate, discuss and debate surrogacy, the better it will serve to protect the child, intended parents and surrogate mother. There is a lack of consistency with statute and case law.

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