There is widespread agreement that the legislation governing surrogacy is seriously out of date and not fit for purpose. Much has changed since 1985, not least the enormous changes in social attitudes which have had such an impact on what we think of as a family.
The approach in the Surrogacy Arrangements Act 1985 is that surrogacy is, at best, to be tolerated, neither encouraged nor in large part even regulated. Section 1A provides that surrogacy arrangements are unenforceable. Sections 2 and 3 contain statutory prohibitions, enforced by criminal penalties, against the commercialisation of surrogacy arrangements and their advertising.
By contrast, the Government's 2018 Guidance Having a child through surrogacy includes the section The surrogacy pathway: surrogacy and the legal process for intended parents and surrogates in England and Wales, which reads:
'Surrogacy is increasingly becoming an option for starting a family for people who are unable to conceive a child themselves … The Government supports surrogacy as part of the range of assisted conception options.'
There seems to be increasing recognition that: first, surrogacy is a legitimate means of forming a family; and, secondly, among countries which do not prohibit surrogacy, all are moving towards a regulatory approach from somewhat disparate starting points. We have indeed come a long way since 1985.
The one key area where, at present, UK surrogacy is regulated is in relation to the provisions in section 54 and the recently inserted section 54A of the Human Fertilisation and Embryology Act 2008 for the making of 'parental orders'. A now very substantial body of case-law demonstrates three things:
First, the legislation was not properly thought out. Section 30 of the Human Fertilisation and Embryology Act 1990 (the forerunner of section 54 in the 2008 act) was introduced at a late stage in the Parliamentary process, so was hurriedly drafted and debated, and the thinking that lay behind the detail was not interrogated.
A comparison of section 30 with the relevant provisions of the Adoption Act 1976 (or of section 54 with the relevant provisions of the Adoption and Children Act 2002) demonstrates that in some respects the law in relation to parental orders was derived from adoption orders; in other respects, the requirements are quite different. One crucial difference is that there is no provision enabling the surrogate's consent to be dispensed with.
Secondly, there are significant problems with the legislation as currently drafted.
Thirdly, the judges have had – properly – to be adept in making the legislation work, despite these problems, in the best interests of the child.
In relation to the last two points, I concentrate on just one topic.
Section 54(8), requiring the court to be satisfied that no money has changed hands 'other than for expenses reasonably incurred' unless 'authorised by the court,' has generated much judicial anxiety. It reflects the criminalisation of commercial surrogacy in the 1985 Act and continues a philosophy which has long been a part of our adoption law.
Women are banned from advertising themselves as surrogates or receiving payment other than to cover 'reasonable expenses', but how is a judge supposed to assess whether the £X paid is a genuine expense? By and large, even in cases where the court thinks it is not a proper expense, the judge nonetheless authorises it, because in reality, the court has little choice.
When the matter comes to court, the judge is presented with a fait accompli. The child, whose future welfare it is the duty of the judge to promote, has been born and is living with the new parents. What is the judge to do? Refuse to make the order which would otherwise be appropriate, and leave the child in legal limbo? To authorise the payment, however distasteful the need to do so, will usually better promote the child's welfare than not to.
What is the way forward?
The time has come to give serious consideration to this problem, to face up to reality and to move to a proper system of regulation rather than simple prohibition. Our legislation is elderly by any standards. Large-scale legislative reform is essential. That, of course, is what the Law Commission and the Scottish Law Commission are currently embarked on.
Increasingly the view, unless you are a prohibitionist, is of movement to some system of regulation. The Law Commissions, in their design of the proposed new pathway (see their consultation paper), recognise this. It must be right.
There are two reasons why: first, only a system of appropriate regulation can prevent abuses, in particular, the exploitation of the vulnerable; secondly, a properly regulated, and therefore more reliable and welcoming domestic system, will reduce the incentives to look abroad for surrogacy and hopefully reduce the legal problems which arise in such cases and which will largely remain whether or not the Law Commissions' proposals for the reform of section 54 are implemented.
For the simple fact of life is that if people want a family and cannot have the family they want by staying within their own state, they will go abroad to find it. Similar consequences follow where the system, although not prohibitive, is unwelcoming.
This creates a very real problem since our law, very long-established, is that no foreign determination in a surrogacy case, whether it arises by operation of foreign law, or by operation of some foreign administrative process, or indeed some foreign judicial process, is recognised here. And that is why we have the problem of the limbo between the child coming back stateless, parentless in English law, and the point at which the parental order is made, if indeed the parental order is ever made.
One question which arises in moving to a regulatory position is whether, as a matter of principle, to adopt a pre-conception or a post-birth process. Currently, we have a post-birth process, which is the very thing which creates the limbo and so many other problems. In contrast, the pathway being proposed by the Law Commissions is for a pre-conception process. This, in line with an emerging international consensus, is to be welcomed. One can only have real protections against abuse and exploitation if there is an effective process of regulation pre-conception. And, given the judicial realities as I have described them, the best protection for the best interests of the child is by a pre-conception rather than a post-birth process.
Another question is whether the process should be judicial or administrative. The proposals of the Law Commissions in relation to the proposed new pathway are for a non-judicial process, and I can well understand why. But if the system is to be non-judicial it is imperative that it operates with efficiency and clarity and that it is robustly and effectively regulated.
Parenthood is not only a matter of the most profound personal, emotional, psychological and societal importance; it also determines status, affecting the seemingly dry topics of succession and inheritance. It is therefore vital that there should be no room for argument, perhaps years later, because of some 'problem' with the paperwork, as to who a child's legal parents are. We cannot afford to see in surrogacy any repetition of the disturbingly long line of cases in which the administrative incompetence of too many IVF clinics, not prevented by a regulatory regime in which the regulator hardly covered itself in glory, caused untold misery and distress.
Two critical issues relate to the surrogate's consent: first, as to the timing of consent; and, secondly, as to whether there should be power to dispense with consent.
In relation to the first, there is, of course, an acute tension between the desire of the intended parents for certainty, and the need to protect the surrogate from a premature consent which does not take adequate account of the realities of pregnancy and birth. That is why it has always been a principle of adoption law that a birth mother cannot give legally effective consent to the adoption of her child less than six weeks after the child's birth.
The Law Commissions propose to square this particular circle by giving the surrogate who has previously consented within the preconception pathway a narrow window of opportunity to withdraw her consent, corresponding with the time limits for the registration of a birth.
Should she do so, an application to court will need to be made, as at present, for a parental order (modifications are proposed to remove some of the current difficulties presented by section 54). That may be an acceptable compromise, but it will require very careful statutory drafting. Who does the surrogate have to notify, in what form and by what means? What will be the consequence if, as will inevitably occur, such notification is given incorrectly or out of time?
In relation to the second issue, the Law Commissions propose circumstances in which the surrogate's consent can be dispensed with, though taking a different approach from that in adoption law where the birth parent's consent can be dispensed with if the child's welfare so requires.
The proposal (CP, para 11.51) is that 'the court should have the power to dispense with consent where the child is living with the intended parents (and the surrogate consents to this), or following a determination by the court that the child's primary residence should be with the intended parents', adding by way of justification, 'In its determination of where a child should live, the child's welfare is the paramount consideration for the court.'
This requires more thought and very careful drafting: it is presumably not intended that parenthood should be determined by any order, however temporary or time-limited, which provides for the child to live with the intended parents; and thought needs to be given to whether, in deciding whether to make such an order, the court should or should not have regard to its effect in relation to parentage.
The final critical issue relates to the nature and quantum of the payments which should be permitted under the proposed pathway – a topic on which the Commissions, to judge from their consultation paper, need, and are seeking particular assistance from consultees.
I add two final observations. We must never overlook the risks of exploitation of surrogates. That, of course, is one reason why we need to move from an essentially unregulated to a regulated system. If that is one side of the issue, the other goes to the questions: what should the regulatory mechanisms be? What should the protections be?
Regulatory systems, particularly if they involve judicial proceedings, cost money, so we need to be alert also to the risk of privileging the wealthy over the less wealthy. So, if you want a regulatory system, How pervasive? How expensive? For, the more you strive to protect the surrogate from the risk of exploitation, the more you may actually be creating a privilege for the wealthy which is denied to the less wealthy.