Following celebrity news about surrogacy from Natalie Massenet and Kim Kardashian, Natalie Gamble was interviewed on the BBC Radio 4 Today programme (and on Radio Solent) last week about the payments surrogates receive and how this should be reflected in law reform here in the UK (listen here at 2hrs 37mins/8.37am).
UK law already permits compensation for surrogacy and this needs to be managed transparently. As an organisation in the UK surrogacy sector, our values are rooted in strong and robust relationships between parents and surrogates – it is the basis for all successful surrogacy journeys and there is no reason it should change. At the same time, surrogates in the UK are already compensated and we want to acknowledge that.
Through our sister organisation NGA Law, we deal with parental order applications every week which outline to the family court payments which have been made in UK surrogacy arrangements, and there is a spectrum of payments and approaches. It is common for lump sums of £15,000 or more to be paid with no quantification of expenses (and many parents admit to us freely that what they are paying isn't really expenses). In a recent High Court case the judge said the ‘going rate’ for surrogacy in the UK was £8,000 to £15,000 and sometimes more. COTS advise parents to pay £15,000 plus expenses. In some arrangements, people make effort to calculate expenses in advance and adhere to this (and, among the organisations, Surrogacy UK is the one which promotes this approach), but this is not the prevailing standard or even particularly common across current UK surrogacy experience.
Any law reform must reflect reality. It would be inconsistent with what is happening, and irresponsible, to disregard the full spectrum of real surrogacy experience.
What has been paid to a surrogate is simply one of the considerations for the family court before transferring parenthood after the birth – the court must either be satisfied that no more than reasonable expenses has been paid or it must authorise any payments. This does not work as a truthful means of enforcing an expenses-only restriction since the family court always prioritises the child’s best interests.
In practice, in UK surrogacy cases magistrates rarely scrutinise payments in any detail before making a parental order. In international cases, the High Court authorises any payments of more than expenses routinely (even recently describing this as a ‘non-controversial issue’). The court has said, again and again, that a parental order will never be refused if it is in the child's best interests. It makes the current belief that the law does not allow surrogates to be paid more than expenses a myth. The only sanction available is to deny a parental order, which never happens and never could.
The law must be workable in practice and up to date. To have legislation which says one thing and does another in practice promotes fragility and vulnerability and is wholly misleading. It leads to financial arrangements being fabricated and undisclosed; it creates confusion and anxiety; it discourages people from agreeing things in a clear and open way at the start, creating obvious scope for problems.
There is also a drastic shortage of surrogates in the UK, and that is in large part a result of surrogacy law which is murky and unclear. Parents are in increasing numbers going overseas instead. If we want to encourage ethical surrogacy in the UK, then surrogates and intended parents need a solid basis for their relationship. Ensuring that there is clarity around any financial commitment is a key part of that.
In the real world the law has limited power to restrict payments between private individuals. It has even less power to stop parents going overseas where compensated surrogacy is openly permitted. That is the reality, and it needs to be accepted to support the full spectrum of real individual surrogacy experience.
There is no need for a ‘set fee’ to be introduced or for UK surrogates to be required to be compensated above their out of pocket expenses if they don't want to be. Surrogates who only wish to claim their expenses should be entitled to continue doing that, and organisations like Surrogacy UK which want to promote that approach should be perfectly entitled to do so. However, surrogates and intended parents (and the organisations which support them) should also be able to openly settle on an upfront figure that encompasses an element of compensation in addition to expenses.
Brilliant Beginnings and COTS both say that compensation for surrogates should be allowed as it is already happening. Even Surrogacy UK (whose Myth-Busting Report last year did not advocate tightening up the expenses-only system) says the UK should retain it’s current 'altruistic compensatory model'. We agree – we just think the compensatory part should be dealt with more transparently.
No. Surrogates will not suddenly demand huge sums because that is not their motivator – all this will do is bring actual payments into the light. Surrogates are, and always will be, motivated to see their intended parents holding a child, to make a difference, to help - money forms a small part of the equation and the commitment required to be a surrogate is too big and too long to attract those motivated only by money.
Many surrogates already receive compensation, so it is moot to say there would be a diminishing number of surrogates who would come forward if they could be more open about it. Surrogates who oppose payments and wish to simply have their exact expenses covered will be entitled to do so. The net result is simply a more transparent and open approach which will support more surrogates coming forward.
The idea that the UK must choose between two separate alternative models of ‘altruistic’ and ‘commercial’ surrogacy is a false and dangerous one which belies real surrogacy experience. The reality is that altruism and compensation can and do co-exist. Surrogates can be motivated by altruism, form a close and enduring relationship with their intended parents, and also (if they wish) be compensated for their risk and effort beyond their itemised out of pocket expenses.
We want to celebrate the wonderful unselfish nature of surrogacy in the UK, the heart-warming and enduring relationships it creates. But at the same time we want to enable a structure where surrogates and intended parents who already agree a compensation element can do so in an open and honest way.