How UK surrogacy law needs to change

girl in sunglasses giving thumbs upThe UK's surrogacy laws were written in the 1980s and all those involved in modern UK surrogacy recognise that the law is woefully out of date and impractical. Under the current law:

  • The surrogate and her spouse are the legal parents of the baby born
  • Surrogacy agreements are unenforceable
  • Parents who have children through surrogacy overseas are the legal parents in the country where their child is born but not in the UK
  • Parenthood is transferred to the intended parents through a court process which takes up to a year after the birth, and has problematic and outdated criteria
  • The law appears to restrict payments to surrogates to 'reasonable expenses' but in reality the courts routinely authorise compensation, and the rules are both confusing and unenforceable
  • In the UK it is illegal to advertise, and for surrogacy agencies to make a profit

Against this backdrop, it is not surprising that not enough UK surrogates come forward. The surrogacy framework feels murky, and the law does not support a surrogate’s commitment to carry a child for someone else. The UK's three non-profit surrogacy organisations (which have long supported intended parents and surrogates to ensure smooth arrangements in the absence of a solid legal basis) have had to close their doors to new intended parents due to the shortage of UK surrogates. Increasing numbers of UK parents are therefore making surrogacy arrangements informally online, and going overseas to countries which offer legally recognised surrogacy.

Informal UK arrangements are often frayed with unnecessary tensions and feelings of vulnerability, and people are left to muddle through without any legal process until after the child is born. Internationally, countries where ethical and legal surrogacy is available are too expensive for the majority of parents, while more affordable options are risky with dangers that poor and illiterate surrogates are being exploited. Children born through international surrogacy are not protected, with the law leaving newborns stranded overseas 'stateless and parentless' for months after they are born.

In managing the ever-increasing numbers, the current law is being stretched to breaking point. High Court judges have described the law as 'irreconcilably conflicting' and 'the very antithesis of sensible' and, in case after case, have called for 'better regulation' of surrogacy in the UK. Recently one of the UK's most senior family judges, the President of the Family Division, made a formal declaration of incompatibility under the Human Rights Act, saying that the law discriminated against the children of single parents and breached their human rights.

Working towards surrogacy law reform

At Brilliant Beginnings and Natalie Gamble Associates, we have campaigned for UK surrogacy law reform since 2007. Natalie first proposed progressive changes to surrogacy law, working with MPs and members of the House of Lords, when the Human Fertilisation and Embryology Bill was going through Parliament in 2007/8. Although these were not implemented, since then we have helped win progress in various ways:

In 2009, we successfully campaigned for embryos stored for surrogacy to be eligible for extended storage (previously only embryos created for non-surrogacy treatment could be stored for more than 5 years).

In 2010, we worked with the Department of Health on the new parental order regulations and won a change giving automatic British nationality status for children given a parental order.

In 2013, we worked with the HFEA to update their Code of Practice on surrogacy treatment for UK fertility clinics, to help create the first ever surrogacy-specific consent forms and procedures.

In 2015, we successfully campaigned in Parliament for changes to be added to the Children and Families Act to give intended parents rights to adoption leave which were equivalent to full maternity leave (previously, intended parents had no rights to time off work when their children were born).

In 2016, we won the landmark human rights case of Re Z (2016) which ruled that the law was discriminating unfairly against single parents. In response to the ruling, the government told Parliament in December 2016 that it intends to amend the law to allow single parents to apply for parental orders.

We now want to see a full review of UK surrogacy law, and we are working closely with government, Parliamentarians, the media, and other charities and UK surrogacy organisations to make it happen. In 2014 we worked with Jessica Lee MP who raised a Westminster Hall debate in Parliament about UK surrogacy law. Several MPs (representing our clients) spoke in the debate, which brought the issues to the Minister of Health's attention and led to the creation of a cross-governmental working party on surrogacy.

In 2016 we launched an online petition on Change.org setting out our agenda for change, which was signed by more than 1,000 people in 3 days. If you support us, you can sign it here: https://www.change.org/p/uk-government-it-s-time-to-review-uk-surrogacy-law

We have recently prepared a detailed submission to the Law Commission (the independent body which recommends how outdated laws should be brought up to date) which is considering whether to take on surrogacy law as a project.

We are also currently working with the Department of Health to create the first ever good practice government guidance on surrogacy which is expected to appear on government websites later in 2017.

How we think UK surrogacy law needs to change

We need a proper legal framework for surrogacy in the UK which works in a global context and reflects the UK’s values of putting children's welfare first. Surrogacy is not going away. To manage it properly, and to make safe ethical surrogacy more accessible, we are calling for:

  • Where everyone agrees, parental orders able to be made during the pregnancy to make the intended parents the child's legal parents from birth
  • A review of the parental order criteria to ensure the law is workable and includes all children born through surrogacy
  • Written surrogacy agreements (as statements of intent rather than binding contracts) to be encouraged before conception so key issues are settled upfront
  • Prompt recognition of the status of children born through surrogacy overseas, ending the long wait to come home
  • Clarity that UK law permits surrogates to be compensated for inconvenience as part of their expenses, reflecting reality and allowing this issue to be dealt with more honestly and transparently
  • The family court deciding what is in the child's best interests if there is a dispute, so that children’s welfare remains paramount (such cases being rare in practice)
  • Within the existing non-profit model of UK surrogacy arrangement services, more workable rules and an abolition of the restrictions on advertising
  • Rights to information (accessible in adulthood) for children born through surrogacy in the UK and overseas, in line with the law on gamete donation

You can follow our campaigning in the media and in Parliament on our blog. For guidance on writing to your MP to help support our campaign please click here.