Blog22nd June 2023
Surrogacy law reforms – “timid tinkering” or “nothing short of revolutionary?”
Though a relatively small number of people are directly involved in surrogacy, it is never far from the media’s attention. This week alone, it has featured in personal celebrity stories, the dramatic conclusion of a Netflix series, and an episode of Radio 4’s Desert Island Discs.
Surrogacy in the UK is governed by a legal framework which some argue is blighted by the attitudes of its time. It was built on the recommendations of a committee chaired by Baroness Mary Warnock, partly in response to controversy over highly publicized cases of surrogacy and concerns about ‘artificial families’. The Surrogacy Arrangements Act 1985 (and subsequent 1990 Human Fertilisation and Embryology Act) did not ban surrogacy outright, but imposed restrictions which aimed to prevent commercial arrangements and ensure that agreements between intended parents and surrogates could never be binding. According to Warnock, members of the committee hoped that in the face of such restrictions, surrogacy would in practice “wither on the vine”.
Instead, surrogacy appears to have become increasingly common, particularly within the last decade. It has been estimated that as many as 500 children might be born through surrogacy in the UK or to UK parents every year. About half of these children result from arrangements involving surrogates who are based abroad.
For years there have been calls for reform in this area, often citing the need for laws that better reflect the experience and intentions of those involved in surrogacy arrangements, as well as modern attitudes to fertility treatments and diverse family forms.
This spring, following a lengthy consultation and review process, the Law Commission of England and Wales and the Scottish Law Commission proposed a draft Bill, and a new system to govern surrogacy in the UK. The proposals include:
- Introducing a new regulatory pathway for domestic surrogacy arrangements, which would enable intended parents to become parents of the child from birth. Under certain conditions, this would replace the current system by which intended parents must apply to the courts for a parental order from six weeks after birth.
- Bringing non-profit surrogacy organisations under regulation by the Human Fertilisation and Embryology Authority (the HFEA) and tasking them with overseeing individual surrogacy agreements under the new pathway.
- Creating a new Surrogacy Register, to give children born through surrogacy the opportunity to trace their origins (the same way those conceived through donor conception are able to access information about their donor when they are older).
- New rules on which payments intended parents are permitted to make to the surrogate (such as medical and wellbeing costs, or lost earnings) and prohibited payments (such as compensatory payments or general living expenses, such as rent).
- Legal and practical measures to safeguard the welfare of children born through surrogacy abroad, for example, through assisting them in acquiring UK nationality, and recording relevant information on the Surrogacy Register.
As we might expect, given that surrogacy attracts strongly held and conflicting views, reactions to these proposals have been mixed. Depending on who you ask, the reforms – if they are enacted – will make all the difference, or barely scratch the surface.
SurrogacyUK, one of the main organisations supporting and facilitating surrogacy in the UK, has been among the most positive in its reaction to the proposed Bill. The not-for-profit has stated that the proposals “retain the UK’s distinct and progressive approach to altruistic surrogacy, strengthen measures that avoid the commercialisation of surrogacy in the UK, provide greater clarity to all parties in surrogacy arrangements and – most importantly – help to provide a secure start to children born through surrogacy, and a clear route through which they can obtain information about their origins.”
Others have questioned the likely impact of these reforms and in particular the extent to which it offers an effective incentive to pursue surrogacy arrangements in the UK rather than go abroad. This is an explicit ambition on the part of the Law Commissions, in acknowledgement of the ethical issues and other complications that can arise in cross-border surrogacy. The introduction of regulated surrogacy organisations in the UK might prove beneficial, according to some, by adding legitimacy to the process and in their ability to advertise, potentially helping to increase the ratio of willing surrogates to hopeful intended parents. But the shortage of UK-based surrogates is likely to persist, others argue. More so, the Law Commissions were not persuaded that introducing binding contracts is the right way to address another key reason given by intended parents for going abroad, which is the perceived risk of a UK surrogate changing her mind.
For others still, the Law Commissions’ proposals legitimise a practice which they argue threatens the status of women, the family unit, and the welfare of future children. One Observer columnist argues that a particularly troubling aspect of the draft law is the implication that single men should have equal access to parenthood through surrogacy without stringent safeguards more akin to those that apply in adoption. On this view, leaving fertility clinics and surrogacy organisations to make an assessment of risks to child welfare before conception (as would be the case under the new pathway to legal parenthood), is like letting the fox guard the hen house, given the interests they might have in the surrogacy arrangements going ahead. Campaign groups Nordic Model Now and Stop Surrogacy Now UK have launched a letter writing campaign asking MPs to reject the bill, should it come before parliament, raising similar concerns about normalisation of surrogacy as a practice and the commodification of women and children involved in the process.
The evidence that will assist policy makers in finding a way through these positions is emerging but limited. This spring also saw the publication of new findings from a longitudinal study of children and families formed through assisted reproduction led by Susan Golombok at the Centre for Family Research in Cambridge. The study included 22 families formed through surrogacy, and found that the absence of a biological or gestational connection between children and their parents does not appear to have any negative impact on the psychological well-being of the children, now aged 20. In our own work on surrogacy we reviewed studies exploring the experiences of surrogates which in the main found that the surrogates tended to find surrogacy a positive experience overall, and did not regret having acted as a surrogate. However, this research tends to be limited to small studies and specific geographical areas and blind spots are likely.
So what happens next? Now that the Law Commissions have concluded their work, it is for the Government to decide how to proceed, and whether to devote parliamentary time to legal reforms. The Minister for the relevant Department is expected to provide an interim response no later than six months after publication, and a final response within a year.
Questions around reproductive rights and choices have always stirred controversy and polarisation. Issues at stake include bodily autonomy, identity, and the appropriate level and limit of state support, protection, and intervention. The debate around surrogacy also illustrates the challenge of reconciling deeply held views and values in a context where empirical evidence is emerging but remains limited in scale and scope. We have published our own account of the ethical issues that should be on the table in any debate about law proposals in this context and will be following developments in this area with interest.