Event Review: Surrogacy Law Reform

As a researcher in the field, I do not miss an opportunity to attend events on surrogacy, which led me to the public lecture on Surrogacy Law Reform at LSE Law School, London. This public lecture was chaired by Professor Emily Jackson, hosting four prominent figures in the field. Each speaker offered a distinct account of surrogacy reform and the process of law reform, which, apart from being very informative, was also accessible to a non-specialist audience.

Currently, surrogacy in the UK is lawful but any agreement between the intended parents and the surrogate is unenforceable in court. The surrogate is the legal mother of the child, while the intended parents need to get a parental order to transfer legal parenthood. Surrogates can receive reasonable expenses, while any prohibited payment has to be (retrospectively) authorised by the court. The current law has been deemed unfit for purpose, with the Law Commission of England and Wales together with the Scottish Law Commission preparing a final report and a draft Bill on surrogacy, which was the focus of this public lecture.

Baroness Barker kicked off the event with an anecdote about what triggered her interest and involvement with reproductive rights in general. Sharing that she went to school in Oldham around the same time that Louise Brown, the first-IVF baby was born, and joking about the pride the region has in being at the forefront of this breakthrough allowed for the lecture to start in a lighter note.

It quickly turned into a more practical, political account of surrogacy reform. She shared that the majority of those in Parliament believe that as surrogacy will occur in any case, it is better to regulate it more effectively to ensure women are not exploited and children are protected. Nonetheless, commercial surrogacy has zero support within Parliament, she said, and it seems preferable to keep surrogacy within the UK instead of overseas. This is in line with the current Law Commission's preliminary proposals.

Baroness Barker highlighted that any surrogacy law reform would not be immediate but would most likely come after the next elections, although she believes there will be a supportive majority for reform. Baroness Barker's account of the process of law reform was eye-opening. As an early-career researcher, I'm thrilled about the potential of law reform in people's lives, at times forgetting how laborious and time-consuming the process is. This was a reminder that reform takes time, Parliament needs time to consider any reform proposals suggested, and the law reform on surrogacy might not be as immediate as we would like.

Second to speak was Natalie Gamble who gave a practitioner's account of the law reform needed. Gamble mentioned how surrogacy started as a rare phenomenon, but is now viewed as a supported form of assisted conception. But while societal attitudes changed fundamentally, the law has not caught up with these changes. Gamble highlighted the challenges intended parents face which lead many abroad, including uncertainty surrounding legal parenthood in the UK and a shortage of surrogates being prominent reasons.

Additionally, Gamble noted that even if the law reform creates a more effective domestic framework, there will be people still going abroad to undertake surrogacy. Any reform attempt should not overlook this reality. This resonates with my own research on international surrogacy, pointing out the need for more robust protection for cross-border surrogacy to ensure intended parents and children are not left in a legal limbo. Finally, Gamble reiterated that this is just the start of the road, with any change requiring not only Parliamentary time and support, but also practical issues of setting up the necessary conditions for a new framework, for example, who has the authority to oversee any new pathway to legal parenthood for surrogacy).

The floor was then given to Dr Kirsty Horsey who was involved in key research that shed light on the reality of surrogacy in the UK, particularly through her two reports together with Surrogacy UK (2015 and 2018). These were part of a grass roots campaign used to make a compelling case for law reform, she said.

Starting with what she called the 'road to reform', from the negative Warnock Committee's Report, according to which surrogacy should be discouraged, and the calm period that followed to a peak on surrogacy cases, Dr Horsey highlighted that academics, practitioners and judges all have come together to push for law reform. Courts attempt to bring surrogacy law up to date with generous interpretation, or even disregard, of many of the conditions for a parental order, which is inadequate and demonstrates the urgent call for reform. Ultimately, Dr Horsey mentioned the importance of real lived experiences shaping reform, and that commitment is needed both from the current government and the current opposition.

Finally, we heard from Professor Isabel Karpin, whose research is focused on creating non-discrimination and more acceptance of the different ways of being in the world. Professor Karpin stressed in some states of the USA there is a growing focus on what is being referred to as the 'epigenetics of surrogacy'. This refers to the belief that the surrogate's diet, environment, mental health, etc, could have an impact on the epigenetics of the developing fetus. This could lead to the hyper-surveillance of surrogates during their pregnancy in an effort to minimise any potential harm to the resulting child, she said.

I was particularly intrigued by this and its potential to pose a real danger to the autonomy of surrogates. Thankfully, this is not something we see in the UK. However, Professor Karpin drew attention to the fact that if we only concentrate on whether the surrogate is paid or not, a highly contested issue at the moment, we lose sight of protecting pregnant women from being policed, as the example of the concept of epigenetics of surrogacy exemplifies.

Common themes arising from the Q&A that followed were that in the UK, relationships are (at least) encouraged between intended parents and surrogates, and cases, where things go wrong in surrogacy arrangements, are incredibly rare. Unfortunately, there is a common misconception this is not the case. Similarly, a false binary of commercial v altruistic surrogacy is often presented in debates.

I thoroughly enjoyed this lecture for bringing together distinct accounts of surrogacy law reform. While reform may not happen soon, I felt extremely positive that reform is going to happen eventually.