The Law Commission's provisional proposals for surrogacy law reform seek a delicate balance, but do they go far enough?
It would be hard to deny that UK surrogacy law is in need of reform. Written in the 1980s, UK law still reflects a policy to discourage surrogacy, even though modern attitudes and government policy now support surrogacy as a positive family-building option. But while the need to change the current law is undeniable, deciding what should replace it is not easy. In June, the Law Commission published a meticulous consultation document setting out the issues and making provisional proposals for reform.
There are two central issues which need to be resolved: how the law should deal with payments to surrogates, and how legal parenthood should be determined to balance the interests of parents, surrogates and children. In respect of both issues, the Law Commission's provisional proposals are progressive but also cautious.
On the issue of payments, the Law Commission has not yet made a recommendation. It has set out eight different categories of payments to surrogates (sensibly rejecting the more simplistic categorisation into 'expenses' and 'other payments', recognising that expenses means different things to different people and there is no such bright line in reality). The Law Commission then asks for feedback as to which categories of payments should be permitted and – crucially – how limits could be enforced.
Whether surrogates should be paid more than expenses is a hotly debated issue, given discomfort around money being involved in such an intimate personal process, and concern about the risk of vulnerable women being exploited. But the truth is that UK law has always fudged this issue.
Under the current law, payments to surrogates beyond expenses are not – contrary to popular misconception – illegal. The family court must decide, as part of the process of transferring parenthood after the birth, whether the payments already made were for expenses and, if not, whether they should be authorised by the court. In reality, there has never been a case where a parental order has been refused because too much was paid. Given the impact any sanctions would have on the child, the truth is that the law does not, and cannot, limit financial arrangements between private individuals.
On the ground, what UK surrogates are currently paid is a complex picture, something reflected in the Law Commission consultation document. It is clear that some UK surrogates do choose to receive, and some intended parents do choose to pay, a financial acknowledgement (beyond pure out-of-pocket expenses) of the enormous commitment a surrogate and her family makes.
It may be labelled as a family holiday or a payment for pain and suffering. More commonly, an overall sum may be agreed to be paid to the surrogate which in reality includes a financial acknowledgement as well as expenses. The current legal framework allows all this and more, but in practice creates murkiness, anxiety and uncertainty. The Law Commission will ultimately need to decide whether to accept this reality, and focus instead on ensuring that the law seeks to ensure informed consent and avoid exploitation so that choice around financial arrangements can be enabled safely, with openness and transparency.
The other major issue is legal parenthood. At the moment, the surrogate and her spouse are the legal parents until the intended parents have completed a lengthy-post birth process to transfer legal responsibility. The Law Commission proposes a new 'pathway' for UK surrogacy, in which the intended parents will be the legal parents at birth provided everyone has taken sensible steps at the outset. This would include working with a regulated surrogacy organisation (which will conduct screening and a welfare of the child assessment), recording information for the surrogate-born child to access in the future, putting a written agreement in place, and having implications counselling and independent legal advice.
The surrogate will retain a right to object after the child is born, and if she exercises it the pathway will fall away and she will, as now, be registered as the legal mother. Parents who do not qualify for the new pathway (importantly including all who go overseas for surrogacy) will still need to apply for a parental order after the birth as they do now, with some modifications to improve the criteria and process.
While the recommendations definitely move in the right direction, it is important to ask whether they go far enough.
Under the proposed new pathway a UK surrogate who has gone through screening, counselling and legal advice will still have a right to change her mind and claim status as the legal mother when the child is born. Does that strike the right balance between all involved? And with so many UK parents going overseas for surrogacy to avoid any risk of a surrogate keeping their child, will the proposals provide enough certainty to encourage them to stay in the UK?
It is also important to emphasise that the system of parental orders will remain for everyone who does not qualify under the new pathway. That includes all international surrogacy cases, which currently comprise more than half the UK families being created through surrogacy (at least unless the Secretary of State decides to recognise surrogacy arrangements made in certain international destinations).
In some ways, it is surprising that parental orders - created on the back of an envelope in 1990 and widely condemned as unworkable by the family court - are being retained at all. The Law Commission's recommended changes essentially reflect where the case law has already taken us, with family court judges having already picked apart the criteria to make the law work in practice. But this begs the question of whether the problem with parental orders is more fundamental, to do with the whole concept of trying to regulate surrogacy and legal parenthood after the event.
Rather than tinkering at the edges, perhaps we need a braver shift to recognising all surrogacy children in the right families more quickly, and re-designing a court process (if one is needed) which can take place pre-birth and focus more directly on the real issues, namely whether there is a pre-conception intention for the child to be the legal child of the intended parents, and taking account of the interests of the surrogate and the child.
These are significant questions, to which there may be no straightforward or uncontroversial answers. That is why it is so important that anyone with an interest in surrogacy responds to the Law Commission's consultation before 11 October. With good quality feedback and the Law Commission's continuing commitment to approaching the issues with real care and thought, we have a real basis to hope that the UK may soon have the best surrogacy laws in the world.