Surrogacy has become an increasingly popular alternative to adoption for couples that have exhausted every avenue of fertility treatment. With Parental Order applications following surrogacy at 300 a year and increasing, a long-overdue review of surrogacy law is finally underway.
In 1985, the first UK commercial surrogacy, with the case of ‘Baby Cotton’, caused public outcry resulting in a rushed piece of legislation, the Surrogacy Arrangements Act 1985 (SAA 1985). The SAA 1985 banned commercial surrogacy agreements, as well as making any surrogacy arrangement legally unenforceable and advertising of surrogacy services also banned. The aim of the act was to discourage surrogacy.
Problems with the current legislation
Despite the changing social attitudes towards solving childlessness, laws surrounding surrogacy have remained largely unchanged for 34 years. At present, if a surrogate mother is married, her husband’s name will be added to the birth certificate, unless the husband has not consented to the surrogacy, legislation in itself showing an antiquated view of a woman’s autonomy. If a surrogate is not married, the intended father can be added to the birth certificate and be grated legal rights over the child from birth.
Upon the birth of the child, the child cannot be discharged separately from the surrogate. This can be problematic if the surrogate has had complications during labour and is required to stay in hospital, meaning crucial bonding time with the Intended Parent (IP) can be delayed, and should a surrogate wish to distance herself immediately from the baby, this would not be possible or the baby staying in a separate ward.
As surrogacy arrangements are unenforceable, this leads to uncertainty for all parties. A surrogate may decide she no longer wishes to give up the child or IPs may change their minds, leaving a surrogate with a child she never intended. This lack of clarity and certainty can dissuade both potential surrogates and people looking at the option of surrogacy, or push IPs to look abroad for help.
The Law Commission has estimated that half of all parents, who undergo surrogacy, go abroad. Countries, such as the states in the USA, have more clarity and enforceability when it comes to surrogacy arrangements as well as having IPs named as legal parents on the birth of the child. Surrogacy agencies abroad have no advertising bans and with the focus on a commercial arrangement, there tends to be more surrogates available than in the UK. This could be seen as both a positive and a negative; with more women available to act as surrogates there is less waiting time and more choice for people wanting to use traditional surrogacy (whereby the surrogate is the biological mother). However, it could also be seen that vulnerable women are taken advantage of and ‘forced’ into selling children. Counties such as Thailand have banned surrogacy nationals for this reason.
Introduction of the Human Fertilisation and Embryology Act 1990 (HFEA 1990)
The HFEA 1990 and its update in 2008 legalised Parental Orders (POs), meaning IPs could apply for all legal rights to a child. There are however certain requirements that must be met to obtain a PO:
- The surrogate must give her consent
- At least one IP must be biologically related to the child
- It must be in the best interests of the child
- The IPs must be married, in a civil partnership or co-habiting ‘as partners’ in an enduring family relationship
These requirements mean that single parents are unable to obtain legal rights over their child regardless if they have a genetic link and that the surrogate has given her consent. This concept appears ridiculous at a time where the term ‘family’ can have so many different options to what was originally seen as a ‘traditional’ family unit.
Although the introduction of POs was a step forward in legislation regarding surrogacy, it still presented many problems. POs can take a long time to be issued, leaving both surrogates and IPs in limbo when it came to decisions regarding the child, for example taking the child abroad or authorising medical treatment, in both these cases, consent would be required from the surrogate. There are some IPs that never apply for POs, for example as they do not meet the requirements, meaning consent would be required from the surrogate for important decisions regarding the child. In an extreme case, IPs could even raise a claim for child maintenance against the surrogate. This again leaves uncertainty in surrogacy arrangements for all sides.
POs can still be required when surrogacy has taken place abroad, leaving IPs needing consent from the surrogate to remove the child from the country as well as relinquishing her parental rights, despite being named on the birth certificate. This can cause problems when the child is being brought back to the UK from a country that requires VISAs. Should the relationship between the surrogate and IPs have broken down, although surrogacy may be enforceable in the birth country, the surrogate could refuse consent, resulting in the child being refused entry to the UK and lengthy litigation in a foreign country.
What has the consultation looked at?
The review by the Law Commission has the potential to make large and very positive waves in the law regarding surrogacy and has suggested proposals that could help the issues identified above.
- Although surrogacy agreements will remain unenforceable (except for legal expenses incurred by the surrogate), there is a proposed new ‘pathway’ which will recognise the IPs as legal parents from birth, provided there has been a written agreement, screening, counselling, involvement by a surrogacy agency or fertility clinic and independent legal advice to all parties. The surrogate will also be given a period after the birth to object. This will make the majority of surrogacies recognise the legal parents quicker, reducing the time the IPs and surrogate are in ‘legal limbo’.
- Should the pre-conception requirements not have been followed or the surrogate has exercised her right to object, the IPs can still apply for a PO. Unlike the current process however, if the surrogate is married, her husband will not gain parental rights automatically, instead the IPs will share parental responsibilities during the application process.
- IPs that have gone abroad and recognised on the birth certificate in the birth country will be recognised as such in the UK, if the Secretary of State has decided the birth country has appropriate surrogacy laws that protect all involved. Should the country not meet the requirements, IPs will still be able to apply for a PO.
- Restrictions on advertising by surrogacy organisations will be lifted.
- Lawyers will be allowed to charge for advice on and helping in making surrogacy agreements.
The review has definitely been thorough and worth a read, it appears to look for legal security for both surrogates and IPs, but attempt to preserve the balance of preventing commercialised reproduction.
The consultation on the review is open until the 11th October 2019 with the final report expected in 2021.
