40 Years of the Surrogacy Arrangements Act: What Next for Surrogacy?

The latest PET (Progress Educational Trust) event brought together six speakers from different backgrounds to offer a multidisciplinary exploration of surrogacy 40 years on from the Surrogacy Arrangements Act 1985.

The event was held online, and supported by the British Fertility Society and CooperSurgical. Sarah Norcross, director of PET, chaired the event and pointed the audience to the In Focus section on surrogacy on PET's website for a carefully curated collection of news and commentaries on the topic.

The first speaker, Kim Cotton, opened the discussion by outlining her experience as the first surrogate to have come to public attention in the UK. She first became aware of surrogacy by watching a television programme and as a young woman with two children thought 'I can do that'. She entered into a surrogacy arrangement with an agency in the USA, but was totally unprepared for what happened next: a media circus, the involvement of social services and lawyers. Her moving story highlighted the lively ethical discourse surrounding surrogacy.

Some years later, as part of her recovery from this traumatic turn of events, she decided to act as a surrogate for someone she knew and described how she is still in touch with that family today. Cotton went on to speak about founding the UK's first surrogacy organisation COTS (Childlessness Overcome Through Surrogacy) so that others could experience a positive surrogacy journey.

The next speaker was Sarah Jones, chief executive of Surrogacy UK, a not-for-profit organisation that helps to create families through surrogacy and that champions ethical surrogacy. She began by detailing her experiences as a surrogate five times over the past 20 years. She also highlighted her ongoing close relationships with all of the families that she has helped to create. Jones noted that various online groups purport to be fighting for the rights of surrogates and challenged them to 'speak to us and ask us what we want before speaking for us'. Her story emphasised that ethics remain at the forefront of surrogacy.

The third speaker was Paul Morgan-Bentley, a parent by surrogacy, and head of investigations at The Times. He gave a personal account about his surrogacy journey. Although he and his partner wanted a family, Morgan-Bentley had concerns about surrogacy and in particular wanted to be sure of the welfare of any children born as a result. Having come across research undertaken by Professor Susan Golombok at the Centre for Family Life at the University of Cambridge, which followed up on children born via surrogacy, he was greatly reassured that this was the right path to take. He and his partner entered into a surrogacy arrangement via Surrogacy UK and now have a child. He described how the family have an ongoing relationship with their surrogate.

Kirsty Horsey, professor of law at Loughborough University, and co-investigator of the Children's Voices in Surrogacy Law project, brought perspectives from surrogacy research to the event. She explained that the 1985 Act requires reform for several reasons, including that it criminalises some aspects of surrogacy, and is misaligned with the formation of the modern family. Professor Horsey then explained the 'New Pathway to Parenthood' outlined in the Law Commissions' reform proposals, which would allow intended parents to attain legal parenthood from birth, removing the requirement for a parental order in many circumstances. The proposals were published in 2023 alongside the Law Commissions' draft Surrogacy Bill.

Professor Horsey then moved onto examples of, and from, lived experience research. Her research showed that only 4.44 percent of the respondent group disagreed with the 'New Pathway to Parenthood' proposals. They disagreed because they either thought the details of surrogacy should not be stored on a national registry, or because the process would be long and unnecessary. She emphasised that their explanations suggest they did not disagree with the principle of the pathway. Her closing comments addressed what is next in the reform process, outlining the need for MPs and Peers to be informed and engaged as the debate moves through Parliament.

Natalie Sutherland, partner at Burgess Mee Family Law, trustee at PET, and host of the In/Fertility in the City podcast, then provided an informative presentation on the breadth of surrogacy matters reported upon in the High Court. Such cases can involve babies born in jurisdictions which do not permit surrogacy for the intended parents' relationship status, or in jurisdictions unexpected by the intended parents, or single state cases involving surrogates' mental capacity concerns or the death of the applicant.

For example, Sutherland explained that in the recent 'travelling surrogates' case of Z (Foreign Surrogacy) [2024], which spanned at least three jurisdictions, Mrs Justice Theis granted the parental order, concluding that a refusal would harm the child's welfare. However, in her judgment, she criticised the intended parents' failure to appropriately plan their international surrogacy, and outlined a list of issues intended parents should consider before entering into any surrogacy arrangement (see BioNews 1280).

Finally, Dr Katherine Wade, senior lecturer in law at the University of Bristol and principal investigator at the Children's Voices in Surrogacy Law project, brought a particularly interesting perspective into the conversation: the voices of children involved in surrogacy. In the research group, 28 percent of the children were born through surrogacy, 68 percent were the children of surrogates, and one percent were the niece or nephew of someone who had a child through surrogacy. Dr Wade explored the following questions through the lens of these children: who they thought the parents should be, whether parental orders are appropriate, whether the intended parents should be able to give the surrogate money, whether children should know the identity of the surrogate and whether contact between the intended parents and surrogate is important.

The event closed with some probing audience questions. These ranged from whether one of the intended parents in a surrogacy arrangement should have a biological link to the child to when and in what circumstances a surrogate should be permitted to keep the baby. This stimulated a lively and wide-ranging discussion among the panellists.

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PET is grateful to the British Fertility Society and CooperSurgical for supporting this event.