The Law Commission closed its consultation on whether to review UK surrogacy law on 31 October 2016.
Ironically, only 6 days before, the following headline appeared showing how desperately in need of reform this area of law is:
- “UK surrogate vetoes legal parenthood for biological parents despite having no wish to be involved in children’s lives”
This blog runs through how the law fell into this hole and proposes how it can dig itself out.
How we got here:
UK surrogacy law is rooted in the Surrogacy Arrangements Act 1985 which was rushed through Parliament to stop surrogacy developing after the ‘Baby Cotton’ case in the mid-1980s. This case involved Britain’s first surrogate mother who was paid £6,500.00 to carry a child for an infertile Swedish couple. In response, law banning brokering deals between couples and mothers for profit was introduced and our current legal framework for surrogacy was born.
Current law on surrogacy in the UK:
Under UK law commercial surrogacy is illegal. It is legal to enter into a surrogacy arrangement on a non-commercial basis. However, surrogacy contracts themselves are unenforceable, so although it is considered good practice to put things in writing to promote clarity, the contract is not legally binding. The parties must therefore trust that the other will honour the agreement. This element of trust is a worry for all parties: the intended parents must trust the surrogate will hand over the child after birth and the surrogate must trust the intended parents to provide compensation and expense payments during the pregnancy.
When a child is born through a surrogacy arrangement the surrogate is the child’s legal mother. If the surrogate is married, her spouse or civil partner will be the child’s second legal parent, unless in rare cases it can be shown that her husband or wife/civil partner did not consent to the conception. If the surrogate is not married, or her spouse does not consent, there is a choice as to who the second legal parent is and forms must be signed before conception to document this choice. If no such forms are signed, the biological father will be the legal father. To transfer legal parenthood the intended parents must apply to the court for a parental order (or other order where the criteria for a parental order cannot be met). A parental order reassigns parenthood to the intended parents fully and permanently. It also extinguishes the legal status and responsibilities of the surrogate and her spouse or civil partner. Getting a parental order can take between four and nine months and the order can only be made if the surrogate and her spouse or civil partner give full, free and unconditional consent more than six weeks after the child’s birth.
It is a common misconception of the Surrogacy Arrangements Act 1985 that it is illegal for intended parents to pay a UK surrogate. This is not true. Intended parents can pay a surrogate’s reasonable expenses. However, unhelpfully, there is no definition of what constitutes reasonable expenses and therefore the court must decide what is reasonable in each case and approve these expenses before making a parental order. The court has taken quite a relaxed approach to determining what constitutes reasonable expenses and to date, there has not been a case where a court has refused to make a parental order because the intended parents paid the surrogate too much. However, paying third parties to broker a surrogacy remains illegal in the UK.
Failings and recommendations:
Although most surrogacy cases result in a child coming to the intended parents without a legally enforceable contract, intended parents and surrogates are faced with leaving the success of an extremely important and life changing event in the hands of parties whom they may not know. Even where those concerned do know one another, the relationship between the adults is not legally defined and good intentions do not always lead to good outcomes. This is far from satisfactory and makes an emotional and stressful situation harder to stomach for the parties involved. In cases where a dispute does arise each case is dealt with individually with the court weighing up what is in the child’s best interests. However as shown by the recent decision of the High Court, there are occasions when the law restricts the court from acting in the child’s best interests. In this case Mrs Justice Theis decided she could not award legal parenthood to the biological parents of twins born through a UK surrogacy arrangement, as the surrogate who carried them refused to give her permission. The twins were conceived with the sperm and eggs of the intended parents and carried by the surrogate. During the pregnancy, the relationship broke down as the surrogate felt the intended parents did not show her enough consideration when concerns were raised about her health. After birth, care of the twins transferred to the intended parents and the surrogate and her spouse have stated that they wish to take no part in the twins’ lives. However, despite recommendations that a parental order was clearly in the children’s lifelong welfare interests, UK law currently gives the court no power to waive the surrogate’s consent and therefore Mrs Justice Theis had no choice but to adjourn the application in the hope that there would be a change to the law or the surrogate would change her mind.
This case provides a stark example of one of the failings of UK surrogacy law and the risk posed to the welfare of children born through surrogacy arrangements. We would therefore advocate that a system is put in place to allow for pre-conception orders to be made where all parties agree. Such orders make practical sense and would allow for the issue of legal parentage to be settled before the child is born based on what the parties intended. This would extinguish the lengthy post-birth process involved in pursuing a parental order and ensure children are not caught in legal limbo. It would also relieve the surrogate and her spouse or civil partner of continuing legal and financial responsibility for the child in the period between birth and a parental order being made. A recent article in The Independent, shown below, provides an example of the issues surrogates face when, as is the case at present, the right people are not recognised as the legal parents immediately from birth.
- “One woman who gave birth to a baby as a surrogate for a couple in her extended family this summer told The Independent that the delay in transferring parental rights had caused her considerable distress. She gave birth to twins who have had serious health complications requiring urgent medical treatment and a stay in neonatal intensive care. As she is the legal parent, she has to approve all procedures for the babies as only she can give medical consent.
- She said this can leave new intended parents feeling helpless and undermined as their connection to the babies is not acknowledged. She said: “The law is a complete headache. Since the birth I’ve had to give consent for every procedure. Every day or every other day for months was another phone call. I had to give consent for four or five operations, feeding tubes being put in or lines.
- “I even had to give consent forms for the couple to see the twins without me being there, for the twins’ grandparents to see them. They know they’re the babies’ parents and they are them, but they’re not being recognised at the moment.”
As the reality is that UK law allows payments for the inconvenience of surrogacy and therefore there is no reason not to be upfront about this in the legislation. Rather than pretending that payments for surrogacy do not happen, the law should provide examples of what level of payment is reasonable in certain situations. This would help to bring transparency and reassurance to all parties and assist the courts in identifying exploitation that can occur on rare occasions.
With a shift towards people pursuing careers before starting a family, increased infertility, and more same sex couples building families through surrogacy than ever before, the urgent need for reform of the unsatisfactory and outdated law on surrogacy in the UK is clear. Here’s hoping the Law Commission is convinced by the responses to their recent consultation and a review of the law is included in their next programme of work to provide better legal protection not only for the children, but also for parents and surrogates.
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