Carrot not stick: reforming surrogacy law

'Irresponsible, bizarre and unnatural.'

Attitudes to surrogacy have altered dramatically since 1978, when Sir Roger Ormrod, then a judge at the Court of Appeal, issued this damning condemnation. In just over 40 years, surrogacy has become an accepted means of forming a family and the source of much satisfaction to intended parents and surrogates. Sadly, the law remains a mess. Now the Law Commission of England and Wales is working jointly with the Scottish Law Commission to conduct a comprehensive review of the law.

The second report of the Surrogacy UK working group is timely (see BioNews 983). If you are looking for fireworks in the form of dramatic tales of surrogacy either as tragedy, children abandoned in a far-off land for not being perfect, or heart-warming stories of intended parents able to found the family they thought could never be, then the report is not for you. Nor does it engage in abstract philosophical debate. It offers something of greater value to those who hope at last to see the 'root and branch' reform of the law that the report argues is necessary.

Building on their first 'myth-busting' report, the working group undertakes two major tasks in setting out an evidenced-based agenda for reform. First, the report offers a wealth of information about the actual practice of surrogacy today and the views of stakeholders. Second, it identifies the many significant failings of UK law today, which mean that there is an avalanche of case law, despite surrogacy in terms of numbers of arrangements being small beer compared with other forms of assisted reproductive technologies.

Fascinating though the case law may be, each case represents a human dilemma within which parties to a surrogacy arrangement must live with uncertainty and fear that the courts will not grant the parental order that transforms intended parents into legal parents and founds a family.

The report is comprehensive addressing a host of issues relating law and practice where the group argues that law reform is needed, including funding, access to knowledge on genetic origins and regulation of surrogacy organisations. Two problems stand out as most urgently demanding reform: legal parenthood and expenses or payments to surrogates. In relation to both matters, not only does law and practice conflict, but law and common-sense part company.

As a result of the disconnect between the law and practice, for well over ten years judges have found themselves forced to perform intellectual somersaults in seeking to reconcile their paramount duty to safeguard the best interests of the child with the letter of the law. As Sir Mark Hedley, former High Court judge, said in 2008: 'It is almost impossible to imagine a set of circumstances in which by the time the case comes to court, the welfare of the child…would not be gravely compromised at the very least by a refusal to make a [parental] order.'

Central then to the Surrogacy UK working group's recommendations are the need for reform of the law relating to legal parenthood and for clarification of what constitutes reasonable expenses. In both cases the group's proposals are informed by data from their survey. In the context of parental status, the research found that surrogates 'do not want to be regarded as the mothers of the child they give birth to'.

The application of the current rules relating to parental status designating the surrogate as the legal mother at birth, and in many cases resulting in the surrogate's husband or partner being classified as the legal father, have been the root cause of some of the most intractable legal cases. Simply stating that legal parenthood should be conferred on intended parents before birth is easy enough. Translating that objective into law is much harder and the report sets out a number of options.

The question of payments to surrogates and what constitute reasonable expenses may cause some surprise. The working group, informed by the views expressed by surrogates themselves, states clearly that the law should 'maintain the underlying principle that surrogacy is provided on an altruistic basis and that no person or surrogacy organisation should profit from it'.

Additionally, the group found no evidence that paying surrogates more than expenses would increase the number of surrogates in the UK. Unfashionable as it may be in some parts of the academic world, the 'gift relationship' seems to be at the heart of the way that the practice of surrogacy has evolved in the UK. Transparency about what qualifies as expenses is however important if the finding in this report that surrogacy arrangements generally run smoothly is to continue to be the case.

Where problems arise, the arrangement in question may more often be an informal agreement in the UK or an overseas arrangement. The report notes that the proportion of overseas arrangements 'continues to increase', though not to the level of 1000 to 2000 a year, as some have claimed. Nonetheless informal and overseas arrangements will pose the greatest challenge for the Law Commissions.

How can new rules be enforced? If I choose to avoid any scrutiny of my arrangement with a surrogate to carry a child for us via artificial insemination carried out outside a licensed clinic, or I travel to a foreign jurisdiction where my age will not count against me if my credit card is good, should I face criminal penalties? And when my partner and I seek legal means to establish legal parenthood, having already settled the child in our home, albeit in breach of the new laws, may Hedley's successors face just the same dilemma that he articulated, in that removing the child will almost always compromise her welfare?

The Law Commissions face the gigantic task of formulating a legal framework for surrogacy in the UK such that very few people will wish to evade it – law based on carrots not sticks.