Law Commissions' proposals won't achieve surrogacy modernisation

On 29 March 2023 the Law Commissions of England and Wales and the Scottish Law Commission published their long-awaited recommendations for UK surrogacy law reform (see BioNews 1185).

The proposed new pathway to parenthood has caught the headlines, and it is good news for intended parents able to find a surrogate through a UK-based surrogacy organisation. It means that, for the first time, the intended parents could be named as their child's legal parents from birth, on the basis everyone works with one of the proposed Human Fertilisation and Embryology Authority (HFEA)-licensed Regulated Surrogacy Organisations, and participates in a UK-based process of screening, counselling, legal advice and a written agreement.

This is a step forward we should celebrate, but its impact is in practice likely to be modest. Information from the family court shows that from 2018 to 2021, 1022 parental order applications were made in England, but data revealed by a Freedom of Information request placed by Brilliant Beginnings revealed only 41 percent related to UK-based surrogacy arrangements (and many of those will have been independent arrangements outside surrogacy organisations). The proposed new law will therefore benefit only a minority of the children actually being born via surrogacy to UK-based intended parents.

The Law Commissions' report states that one of the main aims of its proposed law reform is to 'encourage intended parents in the UK who wish to enter into surrogacy arrangements to do so in the UK, rather than overseas'. But it is difficult to see how their proposals will achieve that when they have not tackled the two main drivers of international surrogacy, outlined in our paper in Human Fertility.

The first is the lack of legal certainty and perceived risk of a UK surrogate changing her mind. This will not be eased since, within the new regulated pathway, the Law Commissions have recommended that a surrogate retains the right to withdraw her consent to the intended parents being their child's legal parents, right up to six weeks post-birth.  

The second is the difficulty intended parents experience finding a UK-based surrogate. To give a picture of what happens on the ground, of the UK's four non-profit surrogacy organisations, two are currently closed to new intended parents and the other two offer the chance to be chosen by a surrogate as long as their membership ratios are under 4:1 (which means four sets of intended parents for every surrogate). Put simply, there are nowhere near enough UK surrogates to meet the demand of the parents looking for help. For intended parents, going overseas to a surrogacy agency which can match them with a surrogate in a clear timescale often feels less like a choice, and more like the only real option available.

So, in seeking to incentivise UK surrogacy, how have the Law Commissions sought to tackle the shortage of surrogates? Not requiring surrogates to be recorded as the mother on the birth certificate of the child they carry will be reassuring, although unlikely to be a magic bullet. In the other direction the Law Commissions have recommended tightening up the rules on payments, a step backwards which stands to reduce the number of women willing to act as surrogates in the UK even further.

Currently, most UK surrogacy teams agree a reasonable figure at the outset (typically £12,000 to £25,000), which broadly reflects expenses but can also include an element of modest compensation. The overall amount is usually paid in monthly instalments, helping to remove the constant focus on the awkward topic of money during the surrogacy journey. The Law Commissions' proposals instead aim to restrict payments to out-of-pocket expenses, reimbursed specifically as they arise.

For a surrogate, the hassle of having to justify and account for everything she spends will be a massive disincentive. As well as the laborious admin involved, what does it say that the doctors, lawyers and everyone else involved in the surrogacy can be compensated, but she has to keep a note of what she spends on sanitary towels? It is disappointing that the Law Commissions appear to have adopted the overly simplistic narrative that altruistic and commercial surrogacy are mutually exclusive alternatives. The messy reality is that what motivates surrogates is nuanced, and that a desire to do something worthwhile can be actively disincentivised if there is no reasonable financial acknowledgment of the enormous time and effort involved.

The Law Commissions say that any financial incentive could risk vulnerable women in the UK being exploited. But isn't that precisely what the new safeguards are designed to prevent? With a properly regulated system, we have the opportunity to manage compensated surrogacy in a safe and ethical way, with non-profit Regulated Surrogacy Organisations able to make sure that surrogates are not vulnerable or financially desperate. We would all love to live in a world where there are enough women willing and able to become surrogates completely for free in our own country. But we don't, and the choice not to use proper regulation to safely support a more liberal approach at home is a choice to drive even more parents overseas to places where those safeguards may not exist. As the former President of the Family Division Sir James Munby told the Progress Educational Trust Conference in 2019 'The time has come to give serious consideration to this problem, to face up to reality and to move to a proper system of regulation rather than simple prohibition.' (see BioNews 1010).

And here is the second big criticism of the Law Commissions' report: while failing to increase access to UK surrogacy it has simultaneously done nothing to help children born through international surrogacy. The experience of intended parents accessing international surrogacy varies and while there may be legitimate concerns about a minority of unethical arrangements in poorer countries, there is also excellent ethical practice overseas, with some destinations offering 'a well-established system in which the interests of all involved, the surrogate, the commissioning parents and any resulting child, are properly safeguarded' (these are the words of Lady Hale, talking about surrogacy in California in a Supreme Court judgment, not ours).

However, the Law Commissions have recommended no significant change to the current law for those going overseas. Parents will still have to apply for a UK parental order after the birth and grapple with the immigration complexities of bringing home a baby of whom they are not legal parents, often facing miserable months overseas waiting for a passport. Parental orders – the product of a legal framework created as a last-minute amendment to the law in 1990 and widely criticised by family court judges in numerous published judgments over decades – have been retained. Why not modernise the criteria and simplify the process? Why not allow parental order applications to be made pre-birth to address the obvious child welfare difficulties of babies being born without secure legal parentage? The Law Commissions' decision to leave children born through international surrogacy stuck in a legal black hole just feels punitive.

It is disappointing that the Law Commissions have failed to take a more pragmatic and realistic view. While their proposed reforms look progressive, the reality is that they represent little more than timid tinkering which will benefit only a small proportion of the surrogacy children being born, and make little difference to the challenges faced by UK intended parents.

A panel including Professor Gillian Black, Law Commissioner responsible for Surrogacy at the Scottish Law Commission, will discuss the 'Building Families through Surrogacy' report and accompanying draft Bill at the free-to-attend online event 'Surrogacy Law: What Is Intended... For Parents? For Surrogates? For Children?'.

This event is produced by PET in partnership with the Scottish Government, and is taking place from 5.30pm-7.30pm (BST) on Wednesday 19 April 2023. Find out more and register here.