Surrogacy: What is so brilliant about 'Brilliant Beginnings'?

'Brilliant
Beginnings', a new non-profit UK surrogacy and egg donation agency, was
launched earlier this year by Natalie Gamble Associates with the stated aim of
supporting intended parents, egg donors and surrogates through surrogacy
arrangements (see BioNews 719).

This new agency
will join other established surrogacy agencies such as COTS and Surrogacy UK in assisting and guiding
those who wish to found a family in this manner. Whilst such agencies serve a
vital function, they are limited by the legal landscape in which they operate.
The principal statute which governs this area, the Surrogacy Arrangements Act
1985, as amended by the Human Fertilisation and Embryology Acts 1990 and 2008, offers
little coherence or guidance to those concerned. The 1985 Act, with its focus on
barring commercial surrogacy, is now out of touch with reality.

'Brilliant
Beginnings' is a brilliant beginning to the extent that it is being set up by
legal experts with sound knowledge and experience of the law in this area. It also
pledges to reinvest resources into campaigning for changes to surrogacy law and
regulation. But 'Brilliant Beginnings' must
operate under the same unsatisfactory legal landscape as the other voluntary
organisations. Echoing others, we argue the law in this context is a mess and
no longer fit for practice. As
increasing numbers resort to the use of international surrogates or the 'murky
waters' of the World Wide Web to find a surrogate (1), the law
is relegated to cleaning up the aftermath. It is the broader legal landscape that
must alter if there is to be better regulation and we propose a three-stage proposal for change.

Firstly, measures need to be implemented which
would not require changes in legislation. Reliable and accurate data on surrogacy in the
UK is rare. Any attempt to develop proper and effective regulation must
be based on sound knowledge and information. Improved data collection is called
for; more information could be gathered through parental order forms, for
example. We question whether accreditation of surrogacy agencies is necessary to
ensure that people are given sound and proper assistance.

Our second proposal involves making minor
but contentious changes to existing legislation; in particular, allowing a
moderate fee to be paid to the surrogate. While reasonable expenses are currently
permitted, parental orders (POs) have still been made in cases where expenses
have exceeded what is deemed 'reasonable'. The Human Fertilisation and Embryology (Parental Orders) Regulations 2010 makes
child welfare the paramount concern. This provision makes it unlikely courts
will ever refuse to retrospectively authorise payment and grant a PO when a baby
is already residing with commissioning parents.

Thus it is clear that even for those that
maintain commercial surrogacy should be prohibited, the law is failing to achieve this aim as increasing numbers of
people go overseas in order to seek out a surrogate (partly due to inadequate
law and regulation in the UK). We suggest that a minor change be made to the
legislation permitting payment of a 'moderate fee' and this would make many
arrangements much clearer and open. How this 'moderate fee' will translate into
practice is a matter for debate. Likewise, the questions of whether payments should
be restricted to moderate amounts, how much is moderate and what role the
surrogate mother should have all warrant further consideration.

Our third
proposal advocates setting up a Warnock-type review to consider a new Act and
creating a system of pre-conception regulation. The time is ripe for an
effective and wide ranging review of how surrogacy should be regulated in the
UK. The new regulatory regime should seriously consider a number of key issues:
whether we make surrogacy contracts post-birth enforceable; allow single people
to apply for parental orders; allow immediate transfer of legal parentage; allow
gestational surrogacy only; allow surrogacy only in cases of medical necessity;
and whether we should make the 'best interests' of the child central.

Only once we
have a better regulatory framework can we have a truly 'brilliant beginning'.