I don't normally attend academic legal conferences. In fact, this was my first one. However, as a parent through surrogacy and a trustee of SurrogacyUK, I eagerly signed up to the event 'Future Directions in Surrogacy Law', discussing the development of surrogacy law reform, organised by Dr Kirsty Horsey, Zaina Mahmoud and Katherine Wade.
The event was meant to coincide with the publication of proposals for reforming UK surrogacy law in the UK by the Law Commission of England and Wales, and the Scottish Law Commission. Unfortunately, the proposals will now be published in 2023, yet, I still felt the event was timely.
Both Law Commissions are working jointly on the proposals for law reform, and began by launching a review of surrogacy law in 2019. They consulted widely about how to improve a law that was written in 1985 and which – while progressive in a global context – is flawed and fails to fully protect the interests of any party involved in surrogacy. The review is exploring a broad range of key issues including surrogacy birth registration, the 'parental order' process through which intended parents acquire legal parenthood, surrogates' expenses and how people born through surrogacy can access information about their origins.
Before the law is changed, the Commissions will produce a report and a draft Bill, which will then progress through parliament.
Representatives of the Law Commissions opened the conference with a welcome and how, due to the stance that the government has taken on surrogacy issues, their proposals will be delayed.
For example, Freddy McConnell – a trans man who carried his own child – lost his legal challenge not to be named as the mother on his child's birth certificate (see BioNews 1073, 1045 and 1017). McConnell's campaign was unsuccessful because of the UK government's desire to maintain the 'integrity' of the birth registration system (which recognises the person that carries a child as 'mother'). A second British case, judged in the European Court of Human Rights challenged another anachronism in UK law: where a surrogate is married, their husband is registered as the second parent. In that case – also unsuccessful – a six-year-old child, born through surrogacy, had campaigned to have her biological father named on her birth certificate (see BioNews 1148). Again, the court found in favour of the UK government and integrity of the birth registration system.
The Commissions have had to consider the implications of these – and other – cases for any proposals they might make to change the way that surrogate births are registered. Their explanation for delay was reassuring but did illustrate the complexity of the challenge that they – and the new law – faces. Surrogacy law doesn't exist in isolation: it's part of a broad legal framework that defines familial relationships, needs to adapt to new reproductive technologies and accommodate evolving societal values around gender and family-making.
The conference was interesting partly because it succeeded in addressing and discussing surrogacy law within this broad context.
A session on 'International Issues' in surrogacy highlighted the complexity and variety of laws and regulatory frameworks globally, including the extent to which the flaws of the UK's surrogacy laws drive intended parents to pursue international surrogacy. The UK's existing legal framework was compared favourably to that in Ireland – which is currently considering its own reform of surrogacy – and New Zealand. New Zealand's legal framework was particularly interesting: while outdated and based on adoption law, the system expedites international surrogacy cases quickly through the family courts and doesn't consider genetic connection to be important in defining parenthood. The lesson, for me, was that no jurisdiction is 'perfect' in its legal framework for surrogacy, but that most can provide some valuable and positive lessons for reform in the UK.
A presentation about surrogacy law across Europe reminded us that surrogacy is illegal in several European countries and considered the relationship between national surrogacy laws and the European Convention on Human Rights. The Convention protects individuals' rights to a private life but does so in a qualified manner: 'interference' in those rights can be justified by appreciation of national laws, the protection of morals and the protection of the rights and freedoms of others.
A highlight of the conference for me was a session on 'Children's Voices in Surrogacy Law'. The interests of children born through surrogacy are often an afterthought in discussion of the ethics, legalities, and practicalities of surrogacy but conference attendees were privileged to hear from children born through surrogacy, and the children of surrogates, on a unique 'Young Person's Panel' of participants aged 11-17.
They had refreshingly straightforward views on some of the ethical issues that can be complicated by 'adult' baggage. They were clear and unanimous that intended parents simply 'are' the parents of children born through surrogacy. The nuanced and mature views that they shared on other ethical issues in surrogacy (surrogates' right to decline consent for a parental order, for example, and issues around expenses payments) demonstrated the contribution that young people can make – and should be invited to make – to the conversation. Hopefully this panel set a precedent and model for many more in the future.
A keynote presentation also explored considered the psychological, wellbeing and relationship impact of surrogacy on children born through surrogacy, and the findings of a 'longitudinal' study that has followed both surrogate and non-surrogate families for 21 years. Importantly, the research – the only study of its kind – finds no evidence of lasting psychological impact on children born through surrogacy, and finds that surrogacy creates happy, supportive and stable families. That won't be a surprise to anyone involved in surrogacy, but it's valuable evidence to counter a small but vocal community of opponents.
The conference closed with a keynote speech from Mrs Justice Theis, who sits in the Family Division of the High Court of England and Wales, who shared her own thoughts and observations from over a decade's experience in the family courts.
I left the conference with such a positive feeling.
UK surrogacy laws are not perfect and reform is necessary and welcome. However, in an international context, our laws are some of the most progressive in the world and – while we push for reform – we should remember and celebrate that fact. And we should be reassured that we have a committed, able, and diverse community of stakeholders – advocates for the donor community, lawyers, academics, senior judges, people with lived experience of surrogacy, including young people – working together to improve the framework for this valuable pathway to parenthood.
Leave a Reply
You must be logged in to post a comment.