Surrogacy law: a call for change?

Surrogacy arrangements in the UK can be a successful
route to parenthood and a rewarding experience for those involved. Surrogacy
law, however, is complex, and concerns have been raised about the varying quality of advice provided to individuals considering surrogacy.
In light of this, the Human Fertilisation and Embryology Authority (HFEA)
intends to update its guidance on surrogacy for clinics, and while we welcome
this clarification, it is also important to consider how surrogates feel the
law shapes their experiences. Do current laws help or hinder surrogacy
arrangements? How do surrogates navigate the potential pitfalls and where do
they turn to for information? Could changes, legal or otherwise, be introduced
to smooth the process for surrogates and intended parents (IPs)? Furthermore,
it is crucial that the views of traditional (or 'genetic/straight') surrogates are
not overlooked, as their route to surrogacy bypasses clinic involvement.

Over the past two years we have been carrying out in-depth
interviews with surrogates and their families about their long-term experiences
of surrogacy. Around half of the surrogates had carried out surrogacies some
years ago and half were still actively involved in surrogacy. As part of this
process we asked participants how they viewed surrogacy law, whether they had
concerns about how surrogacy is carried out, and whether they could recommend
improvements.

Surrogates taking part in our study frequently singled out the
lack of parental leave allowance for IPs as being unjust. Since data collection
ended, proposals have been included in the Children
and Families Bill to bring parental leave for IPs in line with legislation
on leave for adoptive parents, and this has been broadly welcomed by those
involved in surrogacy.

A further area highlighted by some surrogates was the complex
question of who is named on the child's birth certificate, with several married
surrogates expressing discontent with having to register their husband as the
child's legal father. In one case, a surrogate reported that her husband, from whom
she had been separated for some time, had to be named on the birth certificate,
a situation she called 'bizarre'. This view was echoed by some surrogates'
partners who raised the concern independently in their interviews.

Similar concerns were raised by other surrogates who
mentioned that in the period before a Parental Order is granted, the surrogate
is legally responsible for decisions concerning the baby, a responsibility many
stated should lie with the IPs. This question becomes particularly pertinent if
the baby needs emergency medical care. On the rare occasions where this
situation had arisen, surrogates felt it had been handled well by hospitals, but
it is possible that greater clarity would be beneficial to support surrogates
and IPs at this already stressful time. Some surrogates argued for a mechanism
to be introduced whereby parental responsibility could be transferred to the IPs
at birth. Whilst we recognise the difficulties inherent in balancing the
interests and care of all the parties involved throughout the surrogacy
arrangement, we feel that the questions pertaining to legal responsibility for
the child in the months following birth would benefit from further
consideration and discussion.

There was a call from many surrogates for information on
surrogacy to be more widely available, and for healthcare professionals and
administrative staff to be better informed. While some surrogates reported that
hospital staff had been well-informed and supportive, facilitating a smooth surrogacy
arrangement, others mentioned cases where hospitals had been less
accommodating, for example by making it difficult for both IPs to be in the room
during prenatal scans. In another case, registry office officials gave a
surrogate incorrect information about registering the child's birth. Had she
not checked the information with her surrogacy organisation, she may have
risked jeopardising the Parental Order.

Many surrogates identified surrogacy organisations as a valid
source of support and, in most cases, their primary source of information. Some
surrogates raised concerns about surrogacies arranged without surrogacy
organisations' involvement and the lack of support available to those who chose
this option. Conversely, several surrogates who had carried out independent
arrangements mentioned the laws against advertising and the difficulties
finding couples.

Much recent debate has focused on legislation around expenses.
Most surrogates we spoke to were happy with the current system of receiving
reasonable expenses, and perhaps this view is unsurprising given that most surrogates
had experienced positive surrogacy arrangements within the current framework. There
was also a strong belief that introducing commercial surrogacy would result in
women acting as surrogates for the 'wrong reason' - ie, having financial rather
than altruistic motives. Many thought the current system works well as it
prevents women from receiving vast sums of money, whilst also giving some
flexibility in the amount received, thus recognising the individual nature of
each pregnancy.

The study's findings echo calls
for a review of surrogacy laws and highlight areas where greater discussion
and clarification would be beneficial for all concerned. We urge that any
review should include consultation with those directly affected by surrogacy,
specifically surrogates and their families, IPs and surrogacy children, who
have direct experience and knowledge of this complex and evolving field.