In the fifth of our series for National Surrogacy Week (which runs from 2nd to 8th August 2021) Jess Nicholson looks at at ‘what’s next’ for surrogacy, in particular considering the Law Commission’s proposals for surrogacy law reform.
Surrogacy has become an increasingly popular pathway for starting a family, particularly in more recent years. Yet, the law on surrogacy in the UK has remained largely the same since the Surrogacy Arrangement Act 1985, albeit with the addition of the Human Fertilisation and Embryology Act in 2008. This has resulted in numerous debates about whether the law is due for reform, particularly given society’s wider acceptance of surrogacy as a means to parenthood. It therefore comes as no surprise that the Law Commission of England and Wales considered surrogacy in its ‘13th Programme for Reform’ back in 2017, and since then have continued to consider possible changes to the law.
Law Commission Proposals for Reform
In June 2019, the Law Commission released a consultation paper on surrogacy entitled “Building Families Through Surrogacy: A New Law’. The Law Commission’s main focus was on balancing the interests of everyone involved in the surrogacy process. The main observations and suggestions for reform were as follows:
A “New Pathway” to Legal Parenthood
The Law Commission recognised that a key flaw in the current law is the Parental Order process. According to s33 of the Human Fertilisation and Embryology Act 2008, the surrogate mother is the legal mother of the child from birth, rather than the intended parents. This means that the intended parents must go through the Court process to obtain a ‘Parental Order’ so that parenthood is transferred to them. This can be a lengthy process, taking six months or more to go through in some cases.
The Law Commission have suggested that rather than obtaining a Parental Order post-birth, intended parents could become the child’s legal parents as soon as they are born, provided that the surrogacy arrangement takes place in the UK. This reform would massively speed up the process for intended parents to gain parental responsibility for the child, while ensuring greater certainty for all parties involved.
The new process would require additional safeguarding. The Law Commission have suggested counselling and independent legal advice for all parties involved to ensure that the arrangement is in the best interests of everyone. They also suggest that the surrogate should retain a right to raise objections for a short period of time after the child is born.
Where surrogacy arrangements take place abroad, the Law Commission propose that the Parental Order process should remain in place as there is no guarantee that similar safeguards would be adopted abroad. However, they do suggest some changes to the process to ensure that it is clearer and simpler.
Payments to Surrogates
The current law states that payment to surrogates is prohibited, bar any reimbursement for their “reasonable expenses”. While the law appears clear on the surface, the Law Commission have recognised that there is a lack of clarity surrounding what is, and isn’t, allowed, largely because what constitutes ‘reasonable expenses’ is not currently defined in the legislation. Furthermore, despite the prohibition being in place, recent case law has shown Courts have retrospectively permitted payments to surrogates beyond reasonable expenses when they consider it is in the child’s best interests to do so. In AB & Another v GH  EWHC 2063 (Fam), for example, the Court authorised a payment of $52,523 to the surrogate mother, yet only $9,500 represented expenses related to the pregnancy.
Although the Law Commission did not make any specific proposals in relation to payment in their consultation paper, they did raise numerous questions on this issue. They comprehensively considered the ethical implications of paying surrogates, recognising concerns surrounding the commodification of human life and the potential exploitation of surrogate mothers. In light of this, they raise the question of whether such payments should be permitted in the future.
They also questioned the types of payment that might be appropriate going forwards and whether such payments should be authorised pre-conception to ensure that they are fair to both parties and do not go beyond what is ‘reasonable’. This could be overseen by surrogacy organisations or clinics to ensure transparency throughout.
Tighter Regulation and Safeguarding
The Law Commission also suggested that surrogacy as a whole should be more widely regulated. They therefore propose a rigorous administrative process to be undertaken pre-birth under their new pathway. This would include counselling and independent legal advice for all parties to ensure everyone is fully informed of the process, as well as the creation of ‘regulated surrogacy organisations’ to oversee surrogacy agreements. These organisations would themselves be regulated by the Human Fertilisation and Embryology Authority to ensure the wider compliance of the requirements under the new pathway.
The aim of this increased safeguarding is to provide greater protection to all parties, whilst also reducing the risks of arrangements breaking down by helping to build a relationship between the parties. This is particularly important given that surrogacy arrangements are not currently enforceable.
It is not uncommon for intended parents to seek a surrogacy arrangement abroad, as some countries have laws in place that makes surrogacy much more accessible. This does not come without its issues:
- Immigration issues: International arrangements also risk the child being left for a prolonged period in their country of birth whilst waiting for travel documentation so they can return to the UK with their parents.
- Citizenship issues: Under UK laws, the child’s legal parent is the surrogate mother, however for many countries, the legal parents are the intended parents from birth. This ‘conflict of laws’ can result in the child being rendered ‘stateless’, having citizenship in neither country. For example, in Re X and Y (Foreign Surrogacy)  EWHC 3030 (Fam), a British couple undertook surrogacy in the Ukraine and twins were born. Under Ukrainian law, the intended parents become the legal parents of the child from birth rather than the surrogate. This resulted in the twins having citizenship in neither country, rendering them ‘stateless’ as they had no right to remain in the Ukraine or move to the UK until DNA tests were sought to aid the granting of the Parental Order.
The Law Commission have identified these difficulties, but also recognise that international surrogacy is likely here to stay. They have therefore suggested operational reforms be put in place to make the process easier and further guidance on nationality and immigration issues to be more widely accessible so parents are aware of what they need to do to bring the child home and obtain a Parental Order. They also considered the possibility of streamlining legal parenthood across borders where appropriate.
The Law Commission received a huge response to their consultation paper. Using the responses they received, they are currently in the process of drafting their finalised recommendations for reform and a draft Bill of proposed changes. This is due to be completed in Autumn 2022. So, no doubt we will have greater clarity on what the future holds for surrogacy then.
In the meantime, if you or a family member would like to take to us in confidence on surrogacy, please contact a member of the family team who would be happy to assist you.