"The law's approach feels out of step with reality"

June 8 2016

Last month, Helen and Natalie represented both Brilliant Beginnings and Natalie Gamble Associates at a conference organised by Kent University on UK surrogacy law reform.

Baroness Mary Warnock, the architect of the UK’s fertility laws, opened the conference with an apology for having ‘got surrogacy wrong all those years ago’. Her 1984 report, which declared surrogacy unethical, led to the 1985 and 1990 laws which made surrogacy agreements unenforceable, prohibited commercial agencies and advertising, and made the surrogate and her husband the legal parents. Baroness Warnock now says that her views were coloured by personal prejudice and that she got it wrong. Intended parents should, she said, be named on birth certificates.

Her views were echoed by other leading thinkers at the conference, and there was broad consensus on the need for urgent reform to the law on parentage. Professor Margot Brazier gave the keynote and set out a possible new framework of pre-conception agreements and a pre-birth court order. Professor Susan Golombok spoke about long term research showing that children born through surrogacy do well. Kim Cotton spoke about her experience and the need for better law and more transparency around surrogate compensation. A panel of surrogates and parents from Surrogacy UK spoke about their incredibly positive personal experiences of surrogacy, with compelling words from Chair Sarah Jones and other surrogates about not wanting to be recorded as the ‘mother’ on the birth certificate.

Natalie and Helen described our experience of more than 600 surrogacy cases in the UK and overseas, and our work through Brilliant Beginnings. They explained what is happening on the ground and how the existing law feels increasingly out of step with reality. In practical terms, UK surrogacy is possible and positive, but there is a severe shortage of UK surrogates – all three non-profit agencies have currently closed their books to new intended parents – and this is driving significant numbers of parents overseas. International surrogacy varies enormously, from an ethical relationship-based (but very expensive) surrogacy in the US, to clinic-managed transactional surrogacy in India, to the risks of surrogacy in third world destinations which pop up and disappear. In terms of the law in practice, surrogates do not frequently change their minds as expected and they do not have a right to ‘keep the baby’ if they do (there have been only 3 disputed UK surrogacy cases and in each the family court has decided what is best for the child). The family court - which must prioritise the welfare of children - routinely authorises payments made to surrogates of more than expenses. The reality is that the restrictions on surrogate compensation have proved completely unenforceable in practice.

To address these realities, Natalie and Helen therefore echoed other speakers in saying that parental orders should be made before a child is born, recognising everyone’s pre-conception intention as to who the parents will be. That is appropriate for the overwhelming majority of surrogacy cases where there is no dispute, and it does not change the fact that the family court can and will decide what is best for the child if there is a problem. There should be transparency around the compensation already paid to surrogates in the UK and overseas. The children of non-biological and single parents should have the same rights as other surrogate children to have their parentage recognised. There should be better information rights for children, as there is for children born through gamete donation.

The issue is not whether UK surrogacy should be ‘altruistic’ or ‘commercial’ (which are not clear concepts which mean different things to different people); it is about designing law which reflects our values properly. UK has a proud history of creating law which prioritises children’s welfare and takes a progressive approach to assisted reproduction and non-traditional families. We need surrogacy law to catch up and reflect those values. It must be workable and should encourage ethical surrogacy practices, but overall it must better protect the increasing numbers of children being born through surrogacy.

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