Surrogacy Law: What Is Intended... For Parents? For Surrogates? For Children?

The Law Commission of England and Wales and the Scottish Law Commission published their highly anticipated joint report, Building Families through Surrogacy: A New Law, at the end of March (see BioNews 1185 and 1185).

After providing some background on surrogacy law reform in the UK, Sarah Norcross, director of the Progress Educational Trust (PET) introduced the expert panel for PET's event 'Surrogacy Law: What Is Intended... For Parents? For Surrogates? For Children?'. This was the first event to feature speakers from either Law Commission since the report was published.

Professor Gillian Black, the Scottish Law Commissioner responsible for surrogacy, started the event. Of course, she could not summarise the entire report, which is well over 600 pages long, and so she highlighted some key points. She explained how these recommendations aim to reflect the changes we've seen over the past 40 years, and are centred on respecting the intentions of all parties involved, while also safeguarding against exploitation and prioritising the best interests of the child. With the Commissions' work done, what happens next is in the hands of the UK government, which is expected to respond to the report within the next six months.

The next speaker, Beverley Addison, senior solicitor and collaborative practitioner at BTO Family Law, provided a practical overview of the report's proposals and how they may affect intended parents. Addison highlighted how the proposed changes provide a greater range of options for intended parents, as single people and those in relationships for less than two years will be eligible to embark on surrogacy journeys. Following Professor Black's observation that the reforms would increase transparency around payments, Addison explained that the proposed reforms would require intended parents to declare any payments made to the surrogate. Making or receiving an overpayment would not be a criminal offence in itself. Only where there is dishonesty concerning payments would regulatory sanctions apply, as the aim is to ensure transparency and prevent any exploitation or coercion of surrogates.

Addison continued to explain how the report aimed to promote the well-being of all those involved, and discussed the introduction of a Surrogacy Register to be held by the Human Reproduction and Embryology Authority (HFEA), which would allow surrogate-born children to obtain information about their genetic and gestational origins. Many surrogate-born children are aware of their origins and have a continuing relationship with the surrogate and their families, and this is reflective of research demonstrating that children born through surrogacy are in favour of openness (see BioNews 1176).

Many people in surrogacy arrangements face workplace-related difficulties (see BioNews 1183), and Addison noted how the report offers improved employment rights for intended parents, ensuring that they would be guaranteed the same employment rights as those going through adoption.

Addison ended with a discussion of whether the reforms go far enough, presenting some arguments made by those who think more could be done to safeguard surrogates against exploitation, and those who think an appropriate balance has been struck in terms of protecting the rights of all parties involved. Ultimately, she concluded, whether these proposals are effective will depend on their practical implementation.

Dr Alan Brown's talk picked up seamlessly, as he presented some of the practical issues related to payments to surrogates. After outlining the four principles set out in the report – mitigating the risk of potential surrogates' exploitation, ensuring surrogates are not worse off financially, permitting payments for expenses typically incurred during pregnancy or related to the surrogacy pregnancy, and ensuring that the birth of the child is not tainted with criminality – he contextualised the issue of payments, explaining how the consultation paper preceding the report had been criticised for ambiguity regarding payments.

While Professor Black had outlined how the report sought to address the opaque nature of payments at present, Dr Brown offered a different analysis of the report's chapter on payments. There is certainly no lack of detail in this chapter (if anything there is almost too much detail), with ten categories of permissible payments defined, and anything falling outside of these categories prohibited. Payments are restricted to out-of-pocket expenses, reimbursed specifically. Dr Brown argued that the requirement for some permitted payments (life insurance, illness cover, screening costs) to be mandatory under the new pathway would shift the UK's approach to recognising the costs associated with surrogacy arrangements.

Dr Brown discussed the four types of payment that are explicitly prohibited – payments for gestational services, compensatory payments, payments for handing over the child, and general costs of living – and how these could be explained by the remit of the Law Commissions' review, as neither the complete prohibition of surrogacy as a practice nor a compensated model were under consideration. He highlighted how the current model of 'reasonable expenses' does in fact sometimes include compensatory payments and general costs of living, and related this to Addison's comment about how the reforms feel restrictive in terms of payment. He discussed how, in practice, the report has introduced an enforcement framework, moving away from the current model where enforcement is theoretical (since in practice, not granting a parental order due to excessive payments would not be in the child's best interests). Before concluding, he mentioned how the report introduces mechanisms for the recovery of payments by surrogates and intended parents. It would have been good to hear more on this point, and how it aligns with the fact that surrogacy agreements are unenforceable.

The final speaker was Alan Inglis, the only specialist family counsel currently practising in both the jurisdiction of Scotland and the jurisdiction of England and Wales. He addressed the fact that the report's recommendations exclude international surrogacy arrangements from the new pathway, as the Commissions were concerned about the risk of exploitation in such arrangements. This exclusion is central to the main policy objectives of the recommendations in the report, but given that more than half of all surrogacy arrangements made by people in the UK are international, there needs to be some protection in place for the children, in line with the overarching focus on the best interests of the child. International surrogacy arrangements will continue, as some jurisdictions allow the intended parents to become the legal parents of the child at birth, and there is a perceived lack of domestic surrogates in the UK (see BioNews 1186). Furthermore, while there are unethical or troubling surrogacy practices in some parts of the world, there are also examples of good ethical practices overseas, in places including certain states in the USA (California, Colorado, New York) and in Mexico (Mexico City).

Inglis' presentation suggested that the proposed changes to international surrogacy arrangements are relatively modest, especially when compared to international adoption. While the Law Commissions sought to make the process of surrogacy more streamlined and accessible for intended parents – and, importantly, protect the welfare of the child and the surrogate – perhaps more needed to be done, as there is an increasing number of international arrangements occupying the courts.

Inglis moved on to discussing double donation, and the genetic link requirement for legal parenthood. The current law requires a genetic link between the child and at least one of the intended parents, and the report maintains this requirement. Some responses to the Law Commissions' consultation were opposed to double donation, with some deeming it a step towards 'designer babies' and others saying that a genetic tie was necessary, in order to maintain a clear distinction between adoption and surrogacy. Inglis concluded by arguing that the report represents an important step towards ensuring that UK surrogacy law is fit for purpose in the 21st century, balancing the rights of all parties involved, with a particular focus on the best interests of the child.

Professor Black was provided the opportunity to clarify any points from the panellists' presentations prior to the Q&A. She quickly bounced off of the other panellists' talks, highlighting the differences between the situation in the UK and other jurisdictions that reformed their surrogacy regulation (latterly New Zealand and New York). The Q&A that followed was lively, as expected, with many questions focusing on the implications of legal parenthood. Other questions concerned genetic origins, with some attendees wondering about the exclusion of double donation from the pathway, and others concerned about the information held in the proposed Surrogacy Register. Overall, it was clear that two hours was not nearly enough to cover these proposals. A whole series of events, exploring the matter from various perspectives, would be ideal.

PET is grateful to the Scottish Government for supporting this event.

Registration will open soon for the 2023 PET Annual Conference, which this year is entitled 'How Much Change Do We Want? Updating Fertility, Embryo and Surrogacy Law'.

The conference is in person only, and will be held in central London on Wednesday 6 December. Further details will be announced in BioNews shortly.