Why surrogacy law needs reviewing
English surrogacy law has its roots 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.
Surrogacy has without doubt become more socially acceptable 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, surrogate and child.
- 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, either immediately or when the opportunity arose as part of the government’s general review of fertility law in 2008.
The Human Fertilisation and Embryology Act 2008 merely tinkered with the existing rules on surrogacy, confirming that non profit-making organisations like COTS and Surrogacy UK operated legally, and extending the availability of parental orders to unmarried and same sex couples.
Remaining problems with surrogacy law
We think that this was a missed opportunity, and that surrogacy law remains in desperate need of review. The following are just some of the issues that we are keen to see addressed:
- The rules on parenthood. The existing rules leave children vulnerable where neither intended parent has any status as a parent at birth; the intended parents cannot be held responsible for a child whose birth they commission, and they have no authority to make decisions about their child’s welfare in the early months.
- A huge amount legally depends on the essentially arbitrary fact of whether or not the surrogate is married. There is a danger that the law will create an artificial demand for unmarried surrogate mothers (particularly in relation to international surrogacy arrangements), regardless of whether they are the most suitable or well-supported surrogate mothers.
- In contrast with wider family law, the conditions for obtaining a parental order are strict and do not place the welfare of the child first. For example, the surrogate and her husband are given an absolute veto (which could be exploited for personal gain) which cannot be overridden by the court. If the six month deadline for applying for a parental order is missed, the court also has no power to extend the deadline in any circumstances.
- International conflicts of law leave children born abroad through surrogacy extremely vulnerable: potentially abandoned parentless and stateless in a foreign country. The law needs to recognise the realities of modern fertility tourism.
- The current system for controlling the level of payments made to surrogate mothers is ineffective, because the only sanction is the denial of a parental order after a child has already been born, and the effect of denying a parental order is to punish an innocent child for the actions of his or her parents. It seems to be an accepted truth that commercial surrogacy should not be permitted, though we would like to see an active debate on this issue, particularly given the changing international context.
- Only couples can apply for parental orders. There is no logical reason to deny surrogacy to single men and women (particularly given that there is no longer any legal restriction on single parents becoming parents through adoption or donor insemination). It is also worrying that the current law might prevent an intended parent securing his or her position if he or she were unexpectedly widowed, or if the intended parents separated, during a surrogate pregnancy.
- Intended parents in surrogacy situations currently have no right to maternity leave, maternity pay or employment protection (where they would have entitlement to rights equivalent to maternity leave if they were adopting a child). Meanwhile, the surrogate mother enjoys full maternity rights extending long after the birth. This needs to be addressed (both for heterosexual couples and gay couples) to ensure that the health of the surrogate mother is protected and that intended parents can care for their newborn child.
- We previously had concerns about surrogacy patients being treated unequally under the embryo storage rules since, until 1 October 2009, fertility patients contemplating surrogacy could store embryos for a significantly shorter period than other patients. We are delighted that, in response to concerted lobbying, the Minister of Health announced last minute changes to the law in September 2009 which have ensured that surrogacy patients now have the same entitlement to extended storage as everyone else (see our blog for more on our involvement in this decision). We hope that this will prove the first step towards further positive reform.
Contact us if you want to discuss any of these issues with us.
