The law of Scotland, England and Wales has been subject to various developments regarding surrogacy; in fact, the three regions are currently in the process of bringing some changes within this area of law by reviewing legislation. However, the current changes which are close to being implemented have been a result of many campaigns and a lot of pressure from various pressure groups, both political as well as non-political. Over 3 decades ago, the Surrogacy Arrangements Act was introduced and put in force in 1985. The laws on surrogacy that are currently applicable in the three outlined regions are largely governed and regulated by this specific piece of legislation. The issue is that over thirty-six years, the manner in which the society perceives and looks at this fairly controversial practice has changed significantly (and so has the applicable technology). For many couples residing in the Western world, surrogacy has become a very common way of starting a family. According to the data gathered by the National Health Service (NHS), 1 in every 7 couples residing in the UK faces issues in conceiving through the traditional manner (NHS, n.d.). Despite these statistics, the laws of surrogacy make the process very slow and less streamlined for people in the UK, as compared to Canadian and American laws governing the area of surrogacy, which are far more efficient and up-to-date.
Nevertheless, the Law Commission of England, Wales and Scotland has finally come to the realization that the said area of law has become outdated. The major concerns include the extent to which the current UK surrogacy law is outdated and the extent of reform it requires. This issue is particularly prominent with regard to commercial surrogacy. Over three decades ago, the Warnock Committee first proposed the idea to change the law on surrogacy in a manner that made commercial payments to surrogate mothers illegal. This issue has been the subject of debate ever since and remains a hot topic to date. This and other more contentious issues will be discussed in detail in the later sections of this article. The following section elaborates on the practice of surrogacy and the scale of its appeal to couples in the UK.
Surrogacy in the UK
Surrogacy can be defined as the process in which a woman gives birth to a child for another couple to raise. This process has been as old as time – it is so old that even the Bible refers to an event in which surrogacy was practiced (Legal Dictionary, 2006; Surrogate, n.d.). While the said process might not have been too common in the ancient times and been considered highly controversial, it is not considered to be a taboo in modern times. This is because the society has become more open to the fact that there are couples who find it difficult to conceive a child through conventional ways, for instance, due to infertility. Moreover, many countries also recognize same-sex couples who can enter into a valid marriage contract, so people have become more open to the option of surrogacy as it may not be possible for a same-sex couple to give birth to their own child, hence, they request someone else to do it for them. Many famous celebrities and social media influencers have opted for surrogacy; for instance, Cristiano Ronaldo, Kim Kardashian, Kanye West, Tom Daley, Shahrukh Khan and Elton John (Di Nuzzo, 2019). With time, the said practice has been gaining more popularity and becoming more common. In the year 2016, Britain recorded births of at least 400 babies born through this procedure. This figure may not look as big per se, but if compared to the number of babies born in the past years, the percentage change has been fairly drastic; the 400 surrogated births were 8 times as much as they had been in 2007 (Igiehon, 2021).
Many scholars, academics and legal practitioners argue that the laws around surrogacy were put in place in a very different time than the time we currently live in. In fact, the Surrogacy Arrangements Act 1985 was passed only seven years after Britain’s first test tube baby (History, n.d.). To put it simply, people in the past were not aware of a lot of alternative methods of conception and the technology was not very advanced either. The position, understanding and openness of the people, combined with current technological advancements are very different today from that of the past. The UK Parliament had passed the Surrogacy Arrangements Act 1985 in response to the backlash that followed when Kim Cotton had been caught accepting $6500 for being a surrogate mother for an American couple. Since then, Cotton has become a critic of the law on surrogacy in the UK. Standing on similar grounds as Cotton, some famous UK surrogacy agencies have been formed as well (such as Surrogacy UK and Brilliant Beginnings) which act as pressure groups and call for reform by disseminating information. Due to the dissemination of information regarding this law, various newspaper articles and scholarly writings have been regularly published highlighting issues with the current law and the need for reform. Before this article dives into the potential changes that should be made in the current law of surrogacy, it is vital to develop an understanding of the basic provisions of the Act.
The Surrogacy Arrangements Act 1985
The Surrogacy Arrangements Act 1985 makes the process of surrogacy legal in England, Scotland and Wales. However, the idea of commercial surrogacy is still considered illegal. The only payments that a surrogate mother can require from a couple are for the expenses reasonably occurring during the process of surrogacy, including, but not limited to, medical bills and compensation for the time missed at work, etc. Unless done on behalf of a non-profit organization, the advertisement for the process of surrogacy is also illegal in the UK. Another element of the Act is that when the surrogate mother gives birth to a child, the official birth certificate bears the name of the surrogate mother. In case the surrogate mother is married, then the spouse is listed as the second parent, unless they do not grant their permission to do so. The surrogate mother can later transfer parenthood to the intended parents through a document known as the parental order. This means that in the UK, the surrogate mother retains legal parenthood of the child she gives birth to, which can only be changed once the intended parents apply for a parental order to transfer it. When the parental order has been granted, only then can the intended parents take the child home legally (unless the surrogate mother has otherwise already consented to them taking the child home without a parental order).
Ever since the 1985 Act came into force, it led to other major changes and developments as well. One such development can be found in Section 36 of the Human Fertilization and Embryology Act 1990. As per this section, surrogacy arrangements have been rendered unenforceable by law (Legislation.gov.uk, n.d.). Put simply, the said provision gives a surrogate mother the right to remain the legal parent of the child through relevant legal proceedings, in case she changes her mind regarding handing over the surrogate child. According to another provision, if the surrogate mother is overseas, then UK law does not recognize the intended parents as legal parents of the child, even if the official birth certificate bears the names of the intended parents.
In short, the basic elements of the Surrogacy Arrangements Act 1985 discussed above have been subject to continuous criticism due to the type of rights they protect of the surrogate mother, the intended parents and the child. Even various developments in the law over time have not made it good enough to be readily applied in the modern society. Therefore, many believe in the urgent need for reform.
Before going into the proposed reforms, this article will discuss further issues that can be found in the current law of surrogacy.
One of the issues that gets highlighted the most by critics of the Surrogacy Arrangements Act 1985 revolves around the manner in which the law tackles the transfer of parenthood. Section 33(1) of the Human Fertilization and Embryology Act 2008 states the following:
“The woman who is carrying or has carried a child as a result of the placing in her of an embryo or of sperm and eggs, and no other woman, is to be treated as the mother of the child.” (Legislation.gov.uk, n.d.)
In line with and in pursuance of this provision, the intended parents of the surrogate child are then not recognized as the legal parents of the child straightaway – even though they had already been in an arrangement with the surrogate mother. This brings in a requirement for the intended parent to apply for transfer of parenthood through a parental order, which ultimately makes the whole process a lot more time consuming and complicated. In contrast with countries such as the United States, there is no such requirement and the child can be transferred to the intended parents on the basis of pre- or post-natal arrangements. Parental orders in the UK can take as much as six months to process, making matters worse for everyone.
Another issue arises when we study the process of a parental order more comprehensively. This process cannot start without the consent of the surrogate mother. Even if the surrogate mother gives consent right after the birth of the child, consent is rendered invalid because, in the eyes of law, the surrogate mother can only give valid consent after at least six weeks of giving birth. All of this can be seen as compromising the rights of the intended parents, the surrogate mother, as well as the surrogate child. Delay in the transfer of the parenthood means that the surrogate mother must take care of the child and all its expenses until the parental order comes through, even if she does not want to. In case the surrogate mother does not want to do so, the child’s rights are likely to be infringed as it may not get taken care of properly. This is usually the case because a surrogate mother ultimately has to give the baby away, therefore, she is not expected to take care of the baby as much as another mother would. At the same time, this issue also compromises the rights of the intended parents who cannot bring their baby home.
Another issue arising from the process of the parental order is that when this order is applied for, the surrogate baby is supposed to be residing with the surrogate mother. This can become an issue if the intended parents separate during or after the pregnancy. In other words, the surrogate mother is held to be responsible for the child (without choice) in case the intended parents change their mind about the whole process, simply because the surrogate mother is the legal parent.
One of the provisions of the Act also states that if the surrogate parent is abroad, then the surrogate parents are considered to be the legal parents of the child, even if the intended parents have their names listed on the birth certificate. Due to this provision, the intended parents then have to apply for a parental order, which brings about the same issues mentioned above. All of this is the case when a child is born through a surrogate mother using the method of artificial insemination. If the child had been born from a surrogate mother through sexual intercourse, then no parental order could be applicable and the only option for the intended parents would be to assume parenthood by applying for adoption. It is worth mentioning that the legal process of adoption is even more complicated and lengthy than getting a parental order, hence, a lot more issues arise concerning the rights of the surrogate child, the surrogate mother and the intended parents.
All of this becomes even more ambiguous and troublesome when light is shed on the provisions which make surrogacy arrangements unenforceable by law. When a surrogate mother gives birth for an intended couple and the intended couple is unable to get a parental order within six months of the baby’s birth, the surrogate mother can be held to be responsible for a child she never intended to keep.
Further compromising the rights of the surrogate mother is the provision that bans commercial surrogacy and any advertisement of it (unless on behalf of non-profit organizations). Th surrogate mothers are only allowed to receive payments for reasonable expenses they incur from pregnancy to birth, but there are no provisions describing what is covered by “reasonable expenses” for such purposes. Many argue that these provisions are only theoretical and do not actually get implemented. This stance is backed up by the fact that there has not been a single person who has been prosecuted in the UK for breaching these provisions. A simple online search can bring up many forums where surrogacy is being advertised publicly (New Law Journal, 2021).
Another issue often pointed out by academics and practitioners is that even though the law prohibits commercial surrogacy, the surrogates typically earn between $15,000 and $30,000 as “reasonable expenses” (Brilliant Beginnings, n.d.). This payout is almost as much as what the surrogates receive in countries where commercial surrogacy is legal, for example, in the USA. The rationale behind banning commercial surrogacy in the UK is said to be the prevention of exploitation. However, ‘commercial surrogacy-friendly’ states, such as the USA and Canada, do not report any cases of exploitation. It is, therefore, argued that the issue is not of exploitation but of proper regulation. If the area of surrogacy is properly governed, the law will also be clearer about who can pay the surrogate and how much.
The need for reform in the current law is obvious given the aforementioned issues, the rights of various stakeholders being compromised and the laws banning commercial surrogacy and prohibiting surrogacy advertisements being easily bypassed. A more up-to-date and comprehensive legal framework needs to be put in place. Matters such as who can be paid and how much must be explicitly addressed to prevent exploitation.
Proposal for Reform
The Law Commission’s consultancy paper in June 2019 on surrogacy highlighted various issues with the current position of the law and put forward various proposals for reform. The consultancy paper proposed that the requirement of a parental order should be abolished and a well-established criteria should be put in place – a criteria which, if satisfied and fulfilled by the intended parents before the birth, can help the intended parents to become the legal parents of the surrogate child from birth. This reform also gives a short time period to the surrogate mother to keep the baby with her, in case she decides to change her mind about the surrogacy arrangements. However, in order to ensure that this proposal is effectively implemented, it will be necessary that the surrogacy agreement is signed by the surrogacy clinic which is governed or regulated by the government.
The proposal for reform aims to ensure that the rights of the surrogate mother are not infringed or compromised by giving her a short period of time within which she reserves the right to claim legal parenthood of the child. The consultancy paper states this to be a period of one week, at the expiration of which the surrogate mother would not be able to exercise her right to claim legal parenthood. Once this period expires, the intended parent maintains legal parenthood till eternity, without the surrogate mother being identified as a legal parent of the child at any time. This short period of one week and the abolishment of the requirement of a parental order will uphold the rights of all the stakeholders involved in the surrogacy agreement. It will also tackle the issues of intended parents changing their mind. Since they will become the child’s legal parents, even if they change their mind the burden will not be shifted to the surrogate mother.
To address the issue of commercializing surrogacy, the consultancy paper states that the law should not allow commercialization of the process, but it should list down the headings under which the surrogate can be paid by the intended parents. These headings include the following (Law Commission, 2019):
- Loss of earnings;
- Loss of welfare entitlement;
- Essential costs of pregnancy;
- Additional costs of pregnancy;
- Costs associated with a surrogate pregnancy;
- Compensation for the pain and inconvenience, medical complications, or the death of a surrogate;
- A flat fee for being a surrogate (either subject to negotiation between the two parties, or subject to a cap set by the negotiator); and
By expressly mentioning the manner in which the surrogate can be paid, the vagueness in the current law can be minimized, the risk of exploitation can be tackled and the said area of law can be better regulated. Even though the Law Commission’s consultancy paper has not yet led to any changes in the relevant statutes, it is still a step forward.
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