Academics and legal practitioners cry for urgent reform.
Surrogacy law reform
Surrogacy arrangements in the UK are regulated by the Surrogacy Arrangements Act 1985 (SAA), as amended by the Human Fertilisation and Embryology Act 1990. This legislation is a dangerous mix of non-enforceable contracts and awkwardly applied rules on legal parentage. Many commentators – and indeed the courts – have been highly critical of this; their judgements highlight that the current law is characterised mainly by the lack of any coherent regulatory system. As a result of various and increasing legal anomalies thrown up in court cases over the past decade, there’s been an increasing call for reform, not just by leading academics but practitioners too. In March 2017, the Law Commission received more than 1,300 submissions from interested parties. From this it became clear that the voices of surrogates and commissioning parents must be heard; however, the Law Commission’s surrogacy report, which outlines recommendations for reform, isn’t expected until 2021.
What’s all the fuss about?
The current regulation of surrogacy in England and Wales fails to achieve a fair balance between the competing interests of the commissioning parents, the surrogate mother and the child born as a result of surrogacy arrangements. In particular, the law gives a disproportionate veto power to the surrogate mother (and possibly her spouse or partner); this is especially critical in cases where the surrogate is not genetically related to the child, as it clashes with the well-established presumption that it is in children’s best interests to be brought up by their natural family. By contrast, the law affords insufficient recognition to the commissioning parents' right to respect for their family life (Article 8 European Convention on Human Rights), in that it gives absolute priority to gestational motherhood over both genetic motherhood and paternal affiliation. The law does not make it an offence to enter surrogacy arrangements but instead makes all agreements unenforceable.
Family law lecturer Dr Carmen Draghici agrees: “The ambivalent legal treatment of surrogacy arrangements, non-enforceable but potentially conducive to weighty legal consequences if ratified by all parties sometime after the child's birth, does not foster legal certainty and places the child in a legal limbo at the start of their life”.
The effect of this non-enforceability is to remove any binding obligations from the parties involved in a surrogacy arrangement because it is an informal arrangement. The commissioning parents can neither sue for the surrogate refusing to transfer the baby nor can the surrogate sue for non-payment to prevent the development of commercial agencies. This has led Dr Carmen to critique this area of the law for failing to respect the child’s own right to private and family life, which includes the right to be recognised as the child of their biological parents and to be raised by the latter. As it stands, the legislation is forcing many desperate parents abroad to find surrogates in countries such as India and the United States, where surrogacy is practised commercially.
So, what is the solution? In Assisted concept and surrogacy in the UK, Emily Jackson provides us with a long-term solution of contract law, which is well equipped to deal with unfair arrangements and void exploitative agreements, and would protect all parties. In Surrogacy in the UK: Myth Busting and Reform, Dr Kirsty Horsey argues that the parents of the child should be determined pre-birth to avoid uncertainty and disputes which will impact the child’s welfare. In many US states such as Georgia, situations of this kind are avoided with legal mechanisms that put intended parents' names on the birth certificate from the get-go, often via a pre-birth order, which transfers responsibility to the intended parents before the surrogate gives birth. This provides legal certainty for all parties, particularly the child.
Surrogacy: the gift of life?
The current law is uncertain and widely seen as unsatisfactory in promoting the child’s welfare. A fundamental issue is whether surrogacy is something that should be encouraged and enabled, or something to be discouraged, due to the sacred nature of childbearing. I shall address the main academic debates surrounding the child’s welfare because UK common law has been founded solely on the child welfare principle.
In Children: The Modern Law, Andrew Bainham of St Phillips Chambers writes that surrogacy arrangements are contrary to the child’s best interests because it’s undesirable for a child to be in circumstances that are likely to result in a dispute between adults. In 2011 Hirsch wrote in the Guardian that UK regulation had failed to keep up with the reality of surrogacy by putting children at risk, especially in countries where its commercialisation is permitted and failing to balance the rights of surrogates with the rights of commissioning parents.
In Ethical issues in surrogacy arrangements, Professor Lane of Princeton University shines a light on the possibility of the child being rejected by both gestational and commissioning parent(s) if born disabled. She goes on to argue that the decision to give up a child is so complex that it cannot be made until after birth. Radical feminists like Andrea Dworkin (1983) and Gena Corea (1985) are naturally against surrogacy arrangements, viewing it as identical to prostitution because it allows society to exploit women in poverty, which results in men seeing women as “walking incubators”. Corea agrees that surrogacy perpetuates a patriarchal society, which allows men to have control over women’s bodies and reproductive matters – viewing them as “receptacles”.
This opinion is dismissed by liberal feminist Ragone in The gift of life, who states women have a right to exercise their autonomy, which means being able to do with her body as she wishes. She argues that surrogacy encourages procreative freedom and is a ‘gift’ that should be encouraged. The notion of surrogacy resembling a ‘gift’ is reflected in its ability to enable various family forms – be it same-sex couples, like Sir Elton John and his spouse, or single parents – to have their own child. This view is mirrored in The booming baby market by Laurance, J, who sees surrogacy as a gift to non-normative families and a welcome break from the traditional nuclear family unit.
The current system: not fit for purpose
More and more people are turning to surrogacy to start a family, yet the laws governing surrogacy remain outdated and inadequate. Currently, commissioning parents must wait until the child is born before they can apply for a parental order, which can be a lengthy process. Not only does this process leave all parties involved in limbo, but it also fails to reflect the reality of the child’s family life and affects the intended parents’ ability to make decisions about the child in their care.
The Law Commission issued a detailed report aimed at providing commissioning parents with more protection, by recommending that parental orders are pre-authorised so that legal parenthood is conferred on intended parents at birth. The UK’s insufficient regulation makes it difficult to monitor the surrogacy process and those involved in it and ensure that standards throughout the process are kept high. There is also a lack of clarity around surrogacy payments – for example, Section 2(1) of the SAA outlaws initiating and taking part in commercial surrogacy and Section 3 outlaws advertising; intended parents are allowed to pay only ‘reasonable expenses’ to the surrogate.
However, this is unclear and difficult to apply in practice. For example, in Re C (Parental Order) (2013) the High Court authorised a large sum of money even though the amount exceeded expenses. This has led Jackson to deem the UK’s prohibition on commercial surrogacy completely ineffective. She considers the notion that if the people applying for a parental order are adequate parents, it’s unlikely that paying the surrogate mother would prevent them from being granted a parental order. Therefore, a reform clarifying payments to a surrogate will allow the law to be applied in practice and prevent commissioning parents from falling foul of the law in this respect.
New pathway to parenthood
The current requirement that the commissioning parents are established before being granted a parental order is an unnecessary barrier, with the majority of the public agreeing that habitual residence should satisfy the grounds of eligibility. The commissions’ proposals for a new pathway for surrogacies would overcome most concerns by allowing the intended parents to become the child’s legal parents at birth. This would allow the law to perform a balancing exercise with the rights of the surrogate and intended parents, as well as providing proportionate protection.
Rachel Cooper and Sarah Tyler, family barristers at Coram Chambers, are confident that this should create greater certainty for surrogates, legal parents and children born out of this arrangement. The new process would also require safeguards, such as counselling and independent legal advice for all parties. This would reduce the risk of the informal contract breaking down by allowing the surrogacy arrangement to be scrutinised before the baby arrives. The background of this proposed reform is the case of Re AB (Surrogacy: Consent) (2016) where the surrogate mother didn’t object to the child remaining with the commissioning parents but refused to consent to their parental order application. The only legal option the intended parents had was to apply for an adoption order. Thus, the ability to dispense with the surrogate’s consent in appropriate circumstances would be significant power at the court’s disposal in such cases. This is particularly significant because a surrogate’s initial consent was required for the matter to reach the court.
The legal community views
Anastasia, City University LLB student, is half-Ukrainian and half-Russian (countries where commercial surrogacy is legalised) and supports paid surrogacy because of the physical and psychological pain the surrogate goes through for nine months, as well as financial set-back during maternity leave if the mother works. Although she doesn’t personally know anyone who’s been a surrogate, she highlights a key reason why surrogacy arrangement in Russia is unlikely to break down; surrogates get to spend time with the intended parents before the birth of the child to help them feel at ease that the child will be in safe hands.
She says it’s not unusual in Russia or Ukraine for surrogates to become close friends with the intended parents. Could this be a framework the UK should implement? Anastasia’s open-minded view is juxtaposed with Sweden-born Ololade Phillips, final-year law student, who supports his country’s complete ban on surrogacy. His view not only rejects commercial surrogacy but surrogacy itself, comparing it to the sin of adultery because it is bringing a third party into a marriage meant for two people, thus violating the marriage bond.
Despite being debated as exploitation and even prostitution, paid surrogacy has rapidly become socially accepted, with celebrities such as Kim Kardashian and Tom Daley opting for such a route into parenthood, thus any development in the law should reflect this. Rachel Cooper states that the current legislation governing UK surrogacy causes the process to be fraught with difficulty for intended parents, surrogate mothers and resultant children. In conclusion, reform is urgently required to provide legal certainty for modern UK families and their children; the law can either become organic and adapt to these social norms or risk becoming archaic.