UK Parliament debates surrogacy reform

October 15 2014
UK Parliament debates surrogacy reform

Jessica Lee MP led a Westminster Hall debate in Parliament yesterday about the need for surrogacy reform.  Helen and Natalie (who have been briefing and supporting her) were delighted to be there. Three other MPs and the Shadow Minister for Health spoke supporting the call for reform of UK and international surrogacy law in order to protect families, surrogates and children.  Jane Ellison MP, Minister of Public Health, gave a response on behalf of the government, saying that the point had been heard, but that caution and thought was needed. 

It is a huge step forward to get this on the Parliamentary agenda.  We will keep pushing to keep up the momentum to take this forward (and will be posting more information shortly about how you can help).  You can read the full debate in Hansard, but here are the main parts of what was said:

Jessica Lee, MP for Erewash (proposing the debate):

Mr Chairman, the law on surrogacy is outdated, limited and in places illogical. I think the time has come for Parliament to take a fresh look at the law on surrogacy and commit to helping people to start their families.  It is estimated there are 1,000 to 2,000 children born to surrogates each year, up from 50 to 100 in 2008. The numbers are rising sharply.  Not only are there problems with the law on surrogacy in this country, but this is within the lack of an international framework for surrogacy. With the rules so ambiguous in this country, intended parents are increasingly turning to other countries to find surrogates to help them.

I am calling for the following changes:

1. New legislation to be brought forward to update the law to help intended parents and surrogates.

2. Written agreements for those going into surrogacy to ensure all issues have been discussed and agreed.

3. An international framework for surrogacy.

4. A code of practice for parents and surrogates.

5. Pre-birth orders. It has to be right there is an immediate transfer of parenthood on birth.

6. Payments to be regulated and transparent for the surrogate's inconvenience and not for the acquisition of a child.

Written agreements and a code of practice would do a lot to alleviate the uncertainty around surrogacy and provide clarity for intended parents and surrogates. It came up in a conversation in my constituency that I wouldn't expect the good people of Erewash to purchase a house or a car without a contract. So why when they form a family, the most important thing they are ever going to do, are they expected to do so without an adequate framework? 

It is really important to establish from the moment of birth who the parents are.  At the moment it is the surrogate and her spouse who are the legal parents of the child. It is often said to me: Isn't it the case that surrogates change their minds, that must happen all the time? Actually that is a common misconception. Most surrogates typically are mothers who have found pregnancy easy and they want to help other families. They have a commitment to helping intended parents and want to see them have their own families. I think we need to support these women and to make the law work for them too.

The existing UK legislation can be difficult to apply to modern surrogacy in an international context. There is no international harmonisation of law, and no automatic recognition of foreign birth certificates recognising the parents. In 2008 a British couple who had paid a surrogate in the Ukraine were unable to bring their children home as they were not recognised as the legal parents. This took a year to resolve during which children were marooned stateless and parentless.

[In response to a question about exploitation]  In my mind it is perfectly obvious: the way to avoid exploitation is to have a clear and transparent structure, both in domestic law and internationally. Far fewer couples in the UK would even consider going abroad if the domestic arrangements in England were completely straightforward.

Since the Same Sex Marriage Bill came through Parliament, we have seen an increase in same-sex couples looking to have a baby through surrogacy. Parliament has done well for same-sex marriage, but other issues then follow on. Parliament needs to take an even-handed approach to address every aspect of social and family life.

I have set out my key requests today. I accept they are not small and some will take time, particularly on the international framework. But I genuinely feel there is a real change in terms of emphasis and a momentum to address this issue. We have judges saying the statute is outdated and I have had strong feeling of support to move things forward. I urge the Minister to take a stand today and offer some solutions to these complex but extremely important matters, which could transform people's ability to have a family.

Richard Harrington, MP for Watford:

The reason I am here is because I have experience of a case involving my constituents, the Patels, who are UK citizens and have lived in Watford for many years, who decided to enter into a perfectly legal surrogacy agreement in India. There was no question as to their British citizenship or that of their baby. Notwithstanding that, I was shocked to find that their son spent the first 8 months of his life without meeting his father. It may sound ridiculous, but the father had to send his passport to the Home Office and therefore couldn't even go and visit his son in India. This was treated as an administrative passport matter; surrogacy was not understood at all, there was no international agreement, no protocol. It seems to me absolutely ridiculous that people trying to do everything properly, who had done what their lawyers had advised, still had to wait for weeks and weeks and months and months as if it were a passport application for an immigrant, as if there were some suggestion of a fraud or some trickery. This is outrageous. I wanted to commend the honourable lady on what she is doing.

Steven McPartland, MP for Stevenage:

This is an incredibly important debate, and something many MPs are concerned about but not overly keen to speak about.  I am pro life and as a Catholic I know that some of the churches do not support surrogacy. But from my point of view, whether you support it or not, the reality is that we have no system in place at the moment, and we need to try and fix that so there is no exploitation.

We know that there are an estimated 1,000 children born through Indian surrogacy each year, but last year only 213 orders were granted by the family court. That suggests there are potentially thousands of children living with adults in the UK who are not their legal parents. Unless we change law, the impact on those families is going to get bigger and worse.  This is something that needs looking at and I fully support the honourable lady's wonderful campaign.

Julie Hilling, MP for Bolton West:

I want to tell you very briefly of a wonderful surrogate family in my constituency. They had tried for 12 years for a baby, gone through tests and goodness knows how many rounds of IVF.  They did much research and eventually took the brave decision to use a specialist surrogacy clinic in India. On 3 March they had a beautiful baby boy and girl. They were underweight when they were born, little more than 2Ib, but then they got caught up in India, stuck with no passports, and spent 4 months in a hotel room getting more and more distressed, with many other couples from the UK who were also caught up in that situation.  We need to make sure that we have experts in our passport offices in the UK who can deal rapidly with these cases and understand the intricacies.

I absolutely agree we need those international agreements so parents who are seeking surrogacy  understand the rules in place.  We also need to examine the whole situation of surrogacy in this country as well and to see whether payment can be made for surrogacy. Because we do have many thousands of parents, or want to be parents, suffering very badly because they cannot have children.

Andrew Gwynne MP, Shadow Minister for Health:

It is now decades since the main rules controlling surrogacy were put in place, and it is no exaggeration to say they are a product of their time. There are some aspects of surrogacy where we have seen welcome progress, such as the inclusion of adoption leave for parents through surrogacy, but it seems as though a more fundamental examination is needed.

At the heart of our concerns must be the health and wellbeing of any children born as a result of surrogacy arrangements. This will be alongside the need to prevent exploitation of any of those involved.  The revelation that the UK may account for as many as 1,000 births in India every year is shocking enough, but when it is contrasted with the low numbers known to be taking place in Britain, it is a situation which requires serious review.  While our legislative framework may work in restricting exploitation in connection with surrogacy in the UK, it may simply be shipping exploitation abroad, where there are undoubted commercial opportunities to make large amounts of money from the exploitation of poor women. I hope this debate may highlight need for consideration of an international convention so we can put an end to unethical and immoral practices.

The question inevitably arises as to how we might alter the current situation in UK so that aspiring parents can explore the option of surrogacy in a way that protects all parties and puts the interests of children first.  If we are going to continue to make use of surrogacy as a means of addressing the problem of infertility, surely it would be better if these processes were to take place within an ordered and regulated system here, rather than an unordered system half way around the world. It is clearly a sensitive area which needs to be considered very carefully. But there is a need for change at home as well as internationally.

Jane Ellison MP, Minister for Public Health (on behalf of the government):

Surrogacy is obviously an emotive issue and I think it is recognised by all that this is not an easy area to progress. But I think the case has been made that perhaps the time has come to have a look at, not least because of the complexity of the international situation. So my comments today are about where we might begin to look, but also to caution against the idea that this will be easy.

Obviously couples for a range of reasons cannot bear children, and for them surrogacy is a way forward, as it is for new families that a few decades ago we wouldn't have thought about. It is going to be an issue which will become more relevant to more people more rapidly than perhaps we anticipated 20 years ago.

The current UK legal framework seems to be about two things: criminalising commercial surrogacy, and facilitating the transfer of legal parenthood to the natural commissioning parents. We do know of very recent cases referred to us concerning how the courts have been able to interpret the legislation and we are still reflecting on the recent judgment made. 

International surrogacy is even more difficult. We are very well aware that couples from the UK choose to travel abroad for surrogacy.  UK law does not make provision for the automatic recognition of an international surrogacy arrangement, and indeed there is no international agreement or any harmonisation of the law. The government has an obligation to protect children from abduction or trafficking and arrangements which might tip into that. We have to proceed cautiously.  The Hague Conference is probably the international body best placed to consider this, but it should be known there is considerable divergence between views of different countries.

I am advised by the Ministry of Justice that 675 parental order applications were made in England and Wales in 2013/14 and 302 applications have been made in the first two quarters of 2014. However, there is anecdotal evidence that suggests there are many more surrogate arrangements taking place, and I think it does illustrate that we can do some more work to emphasise benefits of parental orders. The Department of Health is working with other departments on international surrogacy issues and looking at ways we can improve information and guidance for potential commissioning parents.

The government does not have plans to make the commercialisation of surrogacy legal in the UK.  With regard to immediate birth certificates naming the commissioning parents, those would amount to pre-birth provisions and would go further than any UK government has felt comfortable before. But I recognise that there has been something in the past which may be a cautiousness.  The honourable lady has made the case in a very thorough way, and we will reflect on that.

Surrogacy is clearly a complex area, and an evolving area. Current legislation seeks to strike that balance in what's right for parents and children, but honourable members have made the case today that that they do not think that balance is being struck, and I hear that. In the light of that, I think there is scope for better information, and that is something that can be done more quickly than changing the law. There is a case for looking more widely at it, and I would be interested to hear the responses after this debate as to the interest across the House.

I mentioned a cross- government working group on surrogacy. I think perhaps the next step from this debate is if I can perhaps invite my honourable friend to come and address that group and perhaps we can see where this debate might go from there.

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