Book Review: Future Directions in Surrogacy Law – Law and policy reform in the UK and beyond

Future Directions in Surrogacy Law: Law and Policy Reform in the UK and Beyond
Edited by Professor Kirsty Horsey, Dr Zaina Mahmoud and Dr Katherine Wade
Published by Bristol University Press
ISBN-10: 1529238765, ISBN-13: ‎978-1529238761
Buy this book from Amazon UK

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In 2020, the All-Party Parliamentary Group on Surrogacy commented that UK laws on surrogacy were 'no longer fit for purpose'. Yet, just five years later, the government confirmed they had no plans to implement the Law Commissions' long-awaited reform proposals (see BioNews 1289). This is disappointing, but it makes Future Directions in Surrogacy Law all the more essential in keeping law reform on the agenda.

The book, edited by Professor Kirsty Horsey, Dr Zaina Mahmoud and Dr Katherine Wade, offers not only a critique of the current system but also a forward looking and pragmatic commentary on further issues to be discussed and considered in changing and developing the law in the UK.

The book first sets the scene and provides a comprehensive overview of the current legal position, international developments, and the shifting public and political attitudes towards surrogacy. The authors document the evolution of UK surrogacy law and policy, from early resistance to a more cautious endorsement of surrogacy as a legitimate route to family building.

The voices of UK intended parents and surrogates themselves from Surrogacy UK and Professor Horsey's surveys are particularly compelling. They share their motivations, experiences, and frustrations, and their lived realities bring urgent clarity as to why thoughtful reform is so badly needed. I was particularly moved by the experience of one mother through surrogacy who described the 'painful' experience of registering her son's birth and the registrar asking: 'Who is mum?'.

The authors also question why so many UK intended parents turn to international surrogacy, noting that the uncertain and restrictive system we have in the UK pushes parents to consider their options overseas. However, cross-border arrangements raise their own ethical, legal and practical issues, as seen in recently published case law (see BioNews 1278 and 1279), with a key issue being the risk of exploitation for surrogates and intended parents alike. Fertility lawyer Natalie Gamble provides useful insights into how law reform should approach international surrogacy to encourage good practice and notes that the Law Commissions' 2023 proposals mark a 'once-in-a-generation opportunity to get the law right'.

The authors move on to the Law Commissions' report, Building Families Through Surrogacy: A New Law, published in March 2023 (see BioNews 1185, 1187, 1188 and 1203). Widely seen as a major step forward, it's nonetheless not without flaws. The requirement that at least one intended parent must have a genetic link to the child, a rule that prevents the use of double donation (the use of an egg and sperm donor with a surrogate) is questioned, and Dr Lottie Park-Morton, senior lecturer in law at the University of Gloucestershire, comments that this seems out of step with other areas of assisted reproduction.

The thorny issue of payments to surrogates is not overlooked. UK parental order criteria currently allow only 'reasonable expenses' to be paid, but this vague phrase has led to confusion and inconsistency. Alan Brown, senior lecturer in private law at the University of Glasgow, argues that the Law Commissions' final report doesn't go far enough, and that the only way to remove ambiguity is to ultimately adopt a permissive substantive policy basis for the regulation of payments (albeit this might not be supported for other reasons). As a surrogacy lawyer who regularly advises intended parents about their plans, I was disappointed at the lack of clarity I felt came from the Commissions' proposals regarding payments, given the uncertainty and worry that is often felt by surrogates and intended parents alike around this area.

The proposal for a national surrogacy register, designed to record information about surrogacy arrangements, donors, and the identities of all parties involved is also interrogated. Dr Wade outlines that the report seeks to protect the interests of children having access to information about their identity and greater transparency in this area but may not go far enough for some children in protecting their rights of identity.

Widening the lens, the authors compare the UK's approach with systems in the USA, Europe, Ireland, and New Zealand, exploring whether there are lessons to be learned from these countries.

In terms of the healthcare experience, UK surrogates typically rely on standard NHS care, which isn't tailored to their unique needs. In contrast, US surrogates access private, dedicated care as standard, with other issues arising due to the contractual nature of surrogacy there. Dr Mahmoud makes a strong case for improving UK healthcare protocols to better support surrogates physically and emotionally.

Across Europe and the Republic of Ireland, legal models vary wildly, with some countries fully prohibiting surrogacy, others tightly regulating it, and some having no clear legal framework at all, domestically or internationally. The authors stress the challenges of cross-border surrogacy and the urgent need for greater international legal harmonisation to protect the rights of children and intended parents.

Debra Wilson, professor of law at the University of Canterbury, New Zealand, highlights that New Zealand presents a potential blueprint for example of what other countries might achieve with careful policy design, balancing ethics, support, and transparency.

This section of the book offers a helpful analysis of the varying legal models we see overseas, and an interesting comparison of the different approaches worldwide. Taking a step back certainly made me reflect on our own system, and the positives which can be taken from it, regardless of whether we see the Law Commissions proposals being implemented in due course.

In the final chapter, the editors reflect on the broader implications of the research findings and commentary and consider future reform. They argue persuasively for the need for comprehensive reform in the UK that recognises the reality of both domestic and international surrogacy arrangements, with an eye on how other countries are regulating the process to better inform any proposals.

They also confront the anti-surrogacy narrative (see BioNews 1222, 1223, 1275 and 1306). Banning surrogacy, they argue, would simply drive it underground or abroad, where protections are often weaker and exploitation more likely. The answer isn't prohibition, it's careful and considered legal reform.

The book is undeniably a landmark contribution to the argument for law reform, and is essential reading for policymakers, stakeholders and public alike. Importantly, it demands a future in which the law reflects the lived realities of all those involved in surrogacy, so that when the government says that surrogacy is an accepted form of family building, the legal system and policy support this.

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Buy Future Directions in Surrogacy Law: Law and Policy Reform in the UK and Beyond from Amazon UK.