Modern Surrogacy Needs a Modern Law: How Should We Regulate Surrogacy in the 21st Century?

Progress Educational Trust
Royal Society of Edinburgh, 22-26 George Street, Edinburgh EH2 2PQ
27 September 2018
This public event was organised by the Progress Educational Trust (PET) and supported by the Scottish Government, and was held at the Royal Society of Edinburgh.

Surrogacy is one of the oldest solutions to infertility, dating back at least 4,000 years. The advent, 40 years ago, of IVF expanded the possibilities for surrogacy, making it possible for a surrogate to carry a pregnancy where the fetus has been conceived using another woman's eggs (rather than the surrogate's own). Recent decades have seen substantial changes to practices and attitudes concerning surrogacy, both nationally and internationally, but UK law has struggled to keep up.
The main legislation that governs surrogacy in the UK is the Surrogacy Arrangements Act, which is now more than 30 years old. This Act sought to outlaw commercial surrogacy arrangements, following a media storm surrounding the case of Kim Cotton - a British woman who was paid £6,500, in an arrangement brokered through an American agency, to act as a surrogate for an anonymous infertile Swedish couple (whom she never met).
Piecemeal changes have since been made to surrogacy law by the Human Fertilisation and Embryology Acts of 1990 and 2008. The former introduced parental orders, so that intended parents could apply for legal parenthood of children born to surrogates. The latter extended the range of people who are eligible to apply for such parental orders - for example, granting eligibility to intended parents in civil partnerships.
Other aspects of UK surrogacy law have been successfully challenged in the courts, particularly where the law has conflicted with what a judge considers to be in the best interests of a child. But key questions remain unresolved.
As things stand, a single person is not eligible to apply for a parental order (a draft change to the law which is currently being scrutinised by Parliament should help resolve this situation, although some difficulties will remain). Furthermore, a couple is not eligible to apply for a parental order if they have no genetic relationship to the child, thereby precluding a couple from using a combination of donor sperm and donor eggs and surrogacy to have a child.
Ongoing difficulties and debates in this area have led to calls for reform of surrogacy law. Now, the Law Commissions of Scotland and of England and Wales have embarked on a joint project, to review surrogacy law and make their own recommendations for reform. The UK Government has said: 'We look forward to the results of the Law Commission's review of the law surrounding surrogacy in general, and are working with all partners and stakeholders to improve the ability of people to pursue this route to parenthood if it is necessary and desired.'
This event explored questions including:
What is the case for changing UK surrogacy law? What proportion of surrogacy arrangements encounter legal difficulties? What are the difficulties that can arise?
Is the current law adequate and proportionate for those surrogacy arrangements that are seemingly unproblematic? Or is it too onerous, even in what are supposedly routine situations?
What might be the consequences - positive or negative - of making surrogacy more easily available to a wider range of people? How can the interests of children, surrogates and intended parents best be formulated and protected?
Should the UK continue to adhere to an altruistic model of surrogacy? Or should it countenance commercial arrangements?
Should a new surrogacy law seek to disincentivise intended parents from seeking surrogates overseas? Or are other considerations and principles more important?

Nick Hopkins
Law Commissioner responsible for Surrogacy at the Law Commission, and Professor of Law at the University of Reading
Claire Kelly
Member of Surrogacy UK
Dr Kirsty Horsey
Chief Examiner and Reader in Law at the University of Kent's Law School, and Adviser to PET
Robert Gilmour
Co-Director of SKO Family Law Specialists, and Family Law Arbitrator at Family Law Arbitration Group Scotland
Dr Agomoni Ganguli Mitra
Co-Director of the University of Edinburgh's Mason Institute for Medicine, Life Science and the Law

Sarah Norcross
Director of PET and Commissioning Editor of BioNews

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