Event Review: Surrogacy in the 21st century — rethinking assumptions, reforming law

On the 6 May, the great and the good in the surrogacy world gathered at Friends House in London to discuss the case for reform of the law in this area. The event, organised by Dr Kirsty Horsey of Kent Law School, followed on from the widely publicised report in November 2015 from Surrogacy UK's working group on surrogacy law reform. 

The conference was attended by a veritable who's who in the field of surrogacy law, starting with Baroness Warnock herself, hot on the heels of her Radio 4 Woman's Hour interview on the subject. Baroness Warnock's 1984 report on IVF led to the current law and regulatory framework that covers assisted reproduction in the UK. She made clear that she believes that she got the issue of surrogacy wrong back then, and there is now a pressing need for reform. This is not the first time Baroness Warnock has expressed her regret; she also did so in her interview with Sarah Norcross (see BioNews 837).

The conference also featured presentations from the three major surrogacy groups that operate in the UK.  

First was COTS – Childness Overcome Through Surrogacy – whose founder and chair, Kim Cotton, talked about the media storm she endured when she became a commercial surrogate for an American Couple in 1980s. Her story made national headlines, and she herself was vilified in the press. She was also subjected to the stress of the resulting court proceedings. Kim later became a surrogate for a British couple, which she did altruistically, and she commented on the difference – both in how this was perceived by the wider public, but also knowing and being involved with the intended parents.

An ethos of 'surrogacy through friendships' was clearly the message that from the chair of Surrogacy UK's chair, Natalie Smith. A volunteer-run organisation, Surrogacy UK acts as a sort of online 'dating agency', helping surrogates and intended parents to find each other. It also hosts events to help them to 'make a match'. The group was clear that, for them, the altruistic motivation for surrogacy was essential. Surrogacy UK admitted that their approach meant that not all intended parents found surrogates, and that some intended parents wait much longer to find a surrogate than others.

The third organisation, Brilliant Beginnings – a non-profit organisation set up by Helen Prosser and Natalie Gamble – is the only surrogacy organisation which is not run by volunteers. Gamble also runs the specialist surrogacy law firm Natalie Gamble Associates, and Brilliant Beginnings facilitates the matching, offers legal advice and manage the surrogacy process for clients.

Interestingly, all three organisations are currently closed to applications from intended parents, citing a shortage of surrogates. They all agreed that the ban on advertising for surrogates makes it difficult to inform potential surrogates that surrogacy is a legal option.

There was also a wide consensus that the ban on sole parents accessing surrogacy should be removed, and Natalie Gamble mentioned a High Court case in which a single parent (a father), had applied for a declaration of incompatibility under the Human Rights Act 1998. (He has just won his case – see BioNews 852.)

Similarly, there was wide consensus that legal parentage should be granted to intended parents before birth, and then confirmed after birth. Professor Margaret Brazier of Manchester Law School referred to this in her keynote address titled 'Jam Tomorrow Will Not Do'. As the leading academic who chaired the 1998 government review of the law relating to surrogacy, she explained that the current law was designed to discourage surrogacy as a practice, given the concerns at the time about commercial surrogacy.

On pre-birth parentage, Professor Brazier argued that a legal process similar to divorce could be implemented – in that a decree nisi would be granted and, if there were no objections, then a decree absolute could be granted six weeks later. This would mean that the intended parents would be able to get a parental order pre-birth and, importantly, have parental responsibility from birth. If there were objections from the surrogate (which happens very rarely), they could be raised before the final absolute order was made.

The main point separating opinion was the role of expenses. Surrogacy UK argued that anything other than expenses should be prohibited. Kim Cotton promoted a fixed fee similar to that for egg and sperm donation. Brilliant Beginnings argued that the courts have never refused a parental order based on the amount paid in expenses as the welfare of the child is always paramount. It does seem the term 'expenses' is often nothing more than a thinly veiled fig leaf for compensation. It does not seem likely that, by allowing a reasonable amount in compensation, this would lead to a commercial system for surrogacy in the UK. But it may be a more honest and upfront way of dealing with what is the most controversial and publicly divisive issue surrounding surrogacy. 

The conference participants seemed genuinely excited that the wheels of reform are slowing getting into motion, but said that this will require collaboration between all involved. A clear agreement on what the new law should look like must be presented by all the stakeholders in order to get government support for this contentious area.