How can we make surrogacy law deliver?

After many years of debate, surrogacy law reform is finally on the move. The Law Commission of England and Wales, and that of Scotland, are now jointly evaluating areas of surrogacy law that have been identified as needing reform, with a view to making recommendations to Government in 2021. Their consultation on the project is expected to open soon, and as the discussion is still taking shape, the Progress Educational Trust (PET) event 'How Can We Make Surrogacy Law Deliver?' last Wednesday came at a pivotal time.

The chair of the debate – Dr Jane Stewart, chair of the British Fertility Society – opened proceedings by reminding the audience of the complexity of the topic. Surrogacy raises all sorts of social, ethical and legal questions regarding the extent to which we do – or should – protect all parties involved, and how this is to be achieved.

First to speak was Professor Nick Hopkins, who is leading the review of surrogacy law at the Law Commissions. Professor Hopkins introduced the timeframe for the review process and outlined some key questions with which he and his fellow law commissioners are grappling. Should intended parents be considered legal parents at birth? Should surrogates be paid? How do children born through surrogacy obtain information about the surrogate? Professor Hopkins emphasised that these issues were very much being approached with an open mind.

Discussion of surrogacy reform, however, should be evidence-based – as the next speaker Dr Kirsty Horsey, a contributing editor at BioNews, set out. Dr Horsey is lead author of the first and second reports of Surrogacy UK's Working Group on Surrogacy Law Reform. The first report in 2015 (see BioNews 831) found that 75 percent of respondents (women who had been surrogates, intended parents and those considering surrogacy) supported surrogacy law reform. This figure rose to more than 90 percent in the second report in 2018. On the issue of what form such changes should take, the data showed a strong preference for intended parents to be considered parents at birth.

Discussions of surrogacy and how it should be regulated often raise concerns about what should happen if a surrogate – while she is pregnant – should change her mind about a surrogacy arrangement. Interestingly, Dr Horsey flagged up the converse situation – surrogates are no less concerned (and possibly more concerned) about what should happen if the intended parent(s) change their mind.

The importance of recognising the reality of surrogacy arrangements was picked up by the next speaker, Elizabeth Isaacs QC, specialist in child law at St Ives Chambers. If surrogacy arrangements are made between consenting adults, asked Isaacs, then what business has the state to regulate such private arrangements? For her, law reform should focus on ensuring that some procedural safeguards are in place to protect all parties involved, and to provide certainty about the child's legal relationship to the (intended) parents at birth.

This was echoed by the final speaker, Sarah Jones of Surrogacy UK. Herself a four-time surrogate (soon to be five), in addition to being a mother of three children of her own, she confirmed the observation that surrogates are deterred by a fear that intended parents might change their mind. In her view, the law in this area could do more to support those who choose to act as surrogates. Parental orders take too long, she says, and there is a misconception in society that surrogates become maternally bonded to the child (rather than seeing the child – both prospectively and following birth – as that of the intended parents all along).

The presentations all suggested that existing UK surrogacy law is not fit for purpose, in that it doesn't reflect the reality of surrogacy – a reality that was arguably not fully understood in the 1980s, when the Surrogacy Arrangements Act was originally passed. Now there is more data available, and more experience of legal and other difficulties that can arise, and this must inform the reform agenda.

As is customary for PET events, the remaining time was given to questions from the audience. One set of questions concerned the use of social media platforms, such as Facebook, to meet and to make informal surrogacy arrangements. This was the 'Wild West' of surrogacy, as one speaker put it, that presents challenges for regulators and risks for those involved. One approach is to improve the informed consent of those taking part, although Isaacs pointed out that the nature of the human condition is that sometimes people make bad decisions. Her proposal is to use accredited lawyers, who have been certified in a similar way to other areas of family law, to give advice and support those involved in surrogacy.

Professor Hopkins also pointed out the difficulty in stopping people making informal arrangements, but said that more could be done to encourage people to enter into a regulated arrangement. The notion of a non-legally binding agreement between parties – as a way of formalising the relationship, improving informed consent and clarifying expectations – was also mooted by Isaacs, who envisaged the use of a written agreement at the pre-pregnancy stage produced following independent legal advice.

The conversation also moved towards the use of legally binding agreements drawn up by lawyers during the pregnancy, which – while distinct from a contract between the parties – would give weight to the expectations agreed by all the parties involved. It is important to dispel any misconceptions about the nature of such agreements, and there was a consensus that they should include options for revocation. For example, one audience member asked what might happen if a child was found to be severely disabled? For Jones, any decision to terminate (or not to terminate) the pregnancy rests ultimately with the surrogate. Rather than binding parties to all aspects of the arrangement, some sort of written agreement could help ensure such eventualities are carefully considered prior to establishing a pregnancy.

Another theme to emerge from the discussion was that of commercialisation and payments to surrogates. Jones pointed out that there remains a need for clarification on what falls under legitimate expenses, and what does not. In her experience, surrogates do not want surrogacy to be commercialised.

This important event addressed squarely the question of how reformed surrogacy law should be delivered, and what the new law should deliver, so that the outcome is effective and the law serves its intended purpose. Crucially, the reality of surrogacy arrangements needs recognising, and any discussion of law reform should be supported by empirical evidence and involve the contribution of all those affected. There will be a need – and hopefully, an opportunity – for further debates of this kind in the very near future.

PET is grateful to its partner (the British Fertility Society) and sponsor (JMW Solicitors) for supporting this event.