House of Lords debates UK surrogacy law reform

The government has welcomed a House of Lords debate on surrogacy law reform, promising to consider whether the statute needs to be updated.

The debate, held last week, pressed the government to rethink the law governing surrogacy. Peers claimed that statutory legislation to prevent commercial surrogacy is having a detrimental effect on altruistic surrogacy.

'Surrogacy is a subject that suffers greatly from sensationalist journalism and broadcasting,' said Baroness Barker, who set up the debate. '[But it] has an important role to play in our society, helping to create much-wanted families where that might otherwise not be possible.'

She argued that the composition of modern families and the practice of surrogacy merited further consideration by the government, citing research from Surrogacy UK that points to the growth of altruistic surrogacy in the UK over the past five years, particularly among gay couples and cancer survivors.

This research also showed that most surrogates received less than £15,000 compensation – a meagre amount, Baroness Barker argued, which underlines how financial motive was rarely the dominant factor in surrogacy.                

She pushed the government to encourage the Law Commission to review surrogacy legislation, and asked whether data could be collected on surrogacy by the HFEA.

Baroness Butler was among a number of peers who asked whether the government would review parental orders, which have caused controversy in recent years. During the debate, Lord Faulks drew attention to a case heard in the Family Division of the High Court last year, in which a surrogate refused to allow the biological parents to obtain a parental order (see BioNews 876). As a result, Lord Faulks said the children were left in 'legal limbo', with the surrogate still legally responsible despite the children now living with and being cared for by the biological parents.

As Lord Brown explained, the law governing surrogacy only allows for parental orders to be made after birth, and the surrogate must give their consent. As a consequence, he noted, this can cause difficulties if the surrogate refuses consent.

Some peers asked the government to investigate the possibility of legislating for pre-birth parental orders, which would be designed to give biological parents better rights when entering into a surrogacy agreement.

Peers also pressed the government for a response to a High Court decision in May in relation to single parents seeking parental orders. The High Court declared that the Human Fertilisation and Embryology (HFE) Act was incompatible with human rights, in that it unfairly discriminated against single parents seeking parent orders (see BioNews 852).

Government spokesman Baroness Chisholm, responding to the debate, informed parliament that the Department of Health would produce guidance on surrogacy, and would consult with relevant stakeholders soon. The HFE Act would also be amended to grant single parents the same rights as couples when applying for parental orders.

Baroness Chisholm also announced that the government has asked the Law Commission to review surrogacy as part of its 2017 programme.

Natalie Smith, chair of the Surrogacy UK Working Group, welcomed the debate: 'We were moved by the insight, thought and compassion of the speakers. The debate in the House of Lords was positive, compelling and focused on action. It is a huge step forwards in recognising surrogacy as a valued and positive form of family building.'