The long-awaited report on reform of surrogacy laws from the Law Commission of England and Wales and the Scottish Law Commission has generally been welcomed, and offers many improvements on the current position in the UK, which affects 400-500 babies per year. The wide-ranging and sensitive report is informed by research findings on the experiences of those most involved in surrogacy, including the children.
Notwithstanding the progressive proposals, much in the report remains to be clarified.
One problematic issue is that concerning birth registration, and the Law Commissions themselves were unable to propose one single option for this, instead offering a choice between a preferred or an alternative model.
The preferred option would require an amendment to the existing civil registration rules to enable the intended parents to be registered as the legal parents from birth. The alternative option would initially see the surrogate registered as the mother but disassociated from legal parental status. Provided the surrogate does not withdraw her consent during the first six weeks post birth, there would then be an automatic amendment to replace the original birth certificate with a parental order indicating the intended parents as the legal parents of the child. The original birth certificate would then be sealed.
Birth registration has long been identified as an area ripe for reform itself, but nothing came of the proposal to include it as part of the Law Commission of England and Wales' 13th Programme of Reform (see BioNews 873).
The current law requires the mother to be identified on the certificate, and the legal mother is defined for such purposes as the person who gives birth. This was confirmed by the Court of Appeal in the McConnell case where a birthing parent who is a transgender man was held to be the legal mother – not the father – for purposes of birth registration, due to the biological process of gestation and childbirth he had been through (see BioNews 1017).
Given that the Law Commissions propose that the surrogate will no longer automatically be the legal mother at birth, this raises the question of how the baby's birth registration will reflect the legal parenthood under the new surrogacy pathway.
The Law Commissions' preferred approach would enable the intended parents to be recognised as the parents on the birth certificate. The surrogate would be registered on the surrogacy register and reference to this would appear in the child's long birth certificate. But this contravenes the current requirement to identify the birthing parent as the legal mother.
The alternative option would follow the current rules to indicate the surrogate as the mother on the birth certificate but it is proposed that she would not be a legal parent. This would result in a change to the consequences of birth registration as it would separate the fact of the birth 'mother' (the surrogate) from legal parental status.
It is clear that there are problems with both options.
The alternative approach conflicts with the core proposal of negating the status of the surrogate as the mother. It may also create confusion for those treating the baby for example, as the intended parents would be the legal parents and therefore be the ones to consent to medical intervention if necessary because the mother would not have any legal status. Although this approach would comply with the current registration requirements of identifying the birth 'mother' on the birth certificate, there would still be a discrepancy with respect to disassociation with the status of legal parent.
The preferred option flows naturally from the proposal to recognise the intended parents as the legal parents from birth, but would require reform to the existing procedure because it denies the appearance of the person who birthed the child on their birth certificate.
So what is the appropriate solution? Irrespective of which option (if any) is chosen, reform to the registration system will be required. It is therefore crucial that we ask ourselves what do we want birth registration to do?
According to the 2002 White Paper on Civil Registration, part of its purpose is to record 'evidence of parentage' which suggests biological parentage. However, we know that parentage has evolved to include parenthood.
Parenthood is the legal parental status of those either with a genetic link, or through statutory recognition of the intention to be legal parents in the context of assisted conception using donor gametes (under the HFE Act 2008) or through adoption (Adoption and Children Act 2002). It is therefore certainly time to rethink what we are registering and why.
It may be helpful to get back to basics and ask should birth registration be purely a historical record of the birth of a child? Could birth registration distinguish between on the one hand, biological 'parents' (gamete donors, the surrogate) and on the other hand, the intended legal parents who assume all legal responsibility for the child? In non-assisted conception cases, the two may well be the same, but where recourse to a third party is involved, it would better reflect both the legal and genetic truths. It would also go some way to encouraging transparency in all donor-assisted conceptions which has been identified as positive for families and long called for. This is where the current system of creating a short and a long birth certificate could be helpful.
Concerns as to privacy surrounding the conception and genetic make-up of a child could be addressed by a short birth certificate indicating the historical fact of the birth of the child and their own name, with no reference to the parents. Only the long birth certificate would contain reference to both the legal parents and any link to a donor or surrogate register where necessary. The additional question of the age at which a child may access such registers remains to be addressed: it is yet another element in the Pandora's box that surrogacy offers.
Notwithstanding the remaining questions, the Law Commissions' proposals are a positive step towards much-needed reform. Now we need the Government (and public) to be responsive to change. Surrogacy may only affect a relatively small proportion of society, but the wider question of parental status and individual identity it creates affects us all.