Why surrogacy law needs reviewing
Modern UK surrogacy law has its roots in the 1980s and is not fit for the modern realities of the 21st Century. Here are just some of the problems:
The wrong people are treated as the legal parents when a child is born through surrogacy. Although the intended biological parents can apply to the family court to get their child's birth certificate reissued, the process of obtaining a parental order takes many months. During the limbo period, the parents caring for the child have no decision making authority, while the surrogate and her husband remain legally and financially responsible. UK law needs to recognise the right people as the parents much earlier.
The parents who care for their biological child born through surrogacy currently have no rights to maternity or adoption leave, to protect their right to time off work to care for their new child. All other parents caring for a new child in the UK have these rights, whether they are giving birth or adopting a child from care. We are delighted that the government recently announced its intention to introduce equal adoption leave rights for parents through surrogacy (and the new law, if passed, should come into force in 2015).
International conflicts of law leave children born through surrogacy outside the UK extremely vulnerable; often born in a foreign country stateless and parentless.
Surrogacy in the UK is restricted rather than being properly and safely regulated. The law was designed in the 1980s to discourage surrogacy, but given the thriving global surrogacy industry and the availability of the Internet, that objective is now completely out of date. With decent surrogacy laws in the UK, parents, surrogates and children could be better protected, and fewer parents would need to travel to less safe jurisdictions abroad.
The law on payments to surrogates is messy and ineffective, since there is no clarity about what 'reasonable expenses' means and anyway the check in the process comes only after the child is born, by which time child welfare always takes priority. It would be much more sensible to make it clear once and for all that inconvenience payments are permitted as part of expenses. This would reflect the reality of practice in the UK for many years, and would bring the UK into line with other jurisdictions.
Only couples can apply for parental orders. This makes no sense, given that single parents can apply to adopt and single mothers can conceive through donor insemination. In practice, the law doesn't stop single parents undertaking surrogacy - it just denies their child the right to have their family properly recognised afterwards. There is also no account for what might happen if one parent dies unexpectedly or the couple separates during the surrogacy process.
In contrast with wider family law, the conditions for getting a parental order are strict and do not put the welfare of the child first. For example, the surrogate and her husband have an absolute veto (which could be exploited for personal gain) which cannot be overridden by the court. There is also a strict six month deadline for applying which the court has no power to extend no matter what the circumstances.
We want to see all these issues changed.
Why is the law the way it is?
Put simply, UK surrogacy law is ridiculously overdue for a proper review, since it is still written almost entirely in the 1980s.
In 1985, the ‘baby Cotton’ case (involving surrogate mother Kim Cotton who had been paid £6,500 to carry a child through surrogacy) hit the headlines, prompting Parliament to rush through the Surrogacy Arrangements Act 1985. The Act, reflecting concerns about the development of a commercialised reproduction industry, prohibited commercially-arranged surrogacy and advertising about surrogacy (click here for more details).
Five years later, the Human Fertilisation and Embryology Act 1990 introduced the parenthood rules and the system of parental orders which still govern the status of those involved in surrogacy arrangements. The surrogacy provisions were tacked on to the 1990 Act at a late stage and did not follow the recommendations of the report of the Warnock Committee on human fertilisation and embryology, which had reported to Parliament in 1984 and on which the 1990 Act was based. On surrogacy, the majority of the Warnock Committee took a hard line, recommending that any facilitation of a surrogacy arrangement by a third party should be made an offence (including criminalising fertility doctors who treated surrogate mothers), while the minority recommended that surrogacy should be regulated. The 1990 Act implemented neither recommendation.
The acceptance of surrogacy as a method of family building has transformed since 1984. In 1997, the new Labour government commissioned a further parliamentary report (the Brazier Report) to review whether surrogacy law continued to meet public concerns. The report recommended that:
- All payments, other than strictly defined expenses, should be prohibited (given the concern that intended parents were getting away with paying more than actual expenses under the current system).
- Surrogacy agencies should be regulated by the Department of Health, which would draw up a code of practice designed to protect intended parents, surrogates and children.
- Existing legislation should be replaced with a new Surrogacy Act.
- Parental orders should be granted only in the High Court and where the terms of the Act had been complied with.
However, none of the Brazier Report’s recommendations was adopted.
Since 1997, the law has increasingly developed in a direction to support and endorse surrogacy, rather than to restrict it, although there has not been a proper review of the whole framework.
In 2008, the Human Fertilisation and Embryology Act extended the categories of parents who could apply for a parental order to include same sex and unmarried couples. This allowed gay dads to be named on birth certificates together for the first time.
Non profit-making organisations like COTS and Surrogacy UK were also officially legalised, provided they did not make a profit and refrained from conducting certain activities. This was the first acceptance of organised surrogacy managed by third parties in the UK.
In 2009 (and in response to a case which we represented the parents on) the government amended the embryo storage rules to remove a longstanding discrimination against parents storing embryos for surrogacy.
Contact us if you want to discuss any of these issues with us, or read more from our blog about our campaigning work on surrogacy law.