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Baby Cotton onwards: UK surrogacy law needs to keep pace

26 August 2019
By Kim Cotton
Founder, COTS (Childlessness Overcome Through Surrogacy)
Appeared in BioNews 1012

The birth of my surrogate daughter Baby Cotton triggered the 1985 Surrogacy Act which was hastily rushed through the UK Parliament as a knee jerk reaction to public opinion, which was generated by sensationalised newspaper headlines. 

The arrangement was made through a commercial US-based agency operating in Britain for the first time. The case went to the High Court where the judge thankfully awarded custody to Baby Cotton's European parents who left the country immediately. The arrangement was anonymous, so I never met the couple, a regret I have to this day. 

Since 1985, society and attitudes to family have changed enormously, but the law governing surrogacy has not kept pace. The Law Commission of England and Wales and the Scottish Law Commission are currently running a joint consultation with the aim of making proposals to Parliament to change the antiquated laws to better reflect current practice (see BioNews 1001).

Birth registration, parental orders and the new pathway

Currently, the registration of a surrogate birth is a joke. If the surrogate is married her husband is seen as the father so his name is on the birth certificate. If she is unmarried the intended father can put himself on the birth certificate, although some registrars will accept the intended father if the surrogate says her husband did not approve of her acting as a surrogate. It is ridiculous, and an affront to the surrogate's bodily autonomy.

Some surrogates and intended parents also face challenges because their hospital will not discharge the surrogate and baby separately. As the legal mother, if the baby needs medical treatment, the surrogate must give permission, undermining the intended parents. 

The Law Commissions have proposed a new pathway to surrogacy which, if followed, will allow intended parents (IPs) to assume parental rights at birth rather than having to apply for a Parental Order after the birth. The surrogate will have a few days to change her mind, after which the intended parents can register the birth naming themselves as the parents. 

As surrogacy agreements are currently unenforceable, legal advice has not been necessary but will be an important step in the new pathway. Both intended parents and surrogates will have to take independent legal advice, and IPs will have to complete counselling sessions either at their clinic or with independent BICA accredited counsellors. 

My concern is that unless these consultations with a lawyer are standardised across the board, set at a one hour slot, and capped at a few hundred pounds then IPs are again being penalised for their infertility, with the expenses just piling up, as they will have to pay for their matched surrogate's consultation as well!

As part of the preconception pathway IPs will be assessed to see if they are suitable parents, meaning that no court appearance or CAFCASS involvement would be required after the birth. 

My organisation, COTS (Childlessness Overcome Through Surrogacy), already has many of these guidelines in place with GP letters, DBS checks and counselling reports as standard practice for every member. For traditional surrogacy we run the vital blood tests as well.

The thorny subject of expenses 

Many of the Law Commissions' proposals appear to be on the right track but others need a lot more clarification, and nowhere is this truer than when it comes to surrogates' expenses. 

Any money paid to surrogates always creates heated debate. COTS has been testing the water to see what surrogates' opinions on the subject are: should it be a flat rate fee and capped? If so, what is the capped figure? Should there be no limit? 

One suggestion the Law Commissions' consultation paper is that expenses could be categorised to help intended parents and surrogates know what payments will be deemed legitimate.  

Eight proposed categories are: loss of earnings; loss of welfare entitlement; essential costs of pregnancy; costs associated with a surrogate pregnancy; additional costs of pregnancy; compensation for the pain inconvenience, medical complications or death of a surrogate; a flat fee for being a surrogate: either freely negotiated between the parties, or subject to a cap set by the regulator; and lastly gifts.

I think some of these categories are just too repetitive and still unclear.

COTS is not directly involved with individual agreements regards expenses but on average a surrogate receives between £12 to 15K. The payments are paid monthly from confirmation of pregnancy at 5 percent per month. The balance on the registration of the birth. Built into these figures are extra contingency payments for illness, counselling, loss of earnings, childcare, miscarriage, C-sections, multiple births and birth complications.

No COTS couple has ever been refused a Parental Order, so we have assumed that these figures have been acceptable in the family law courts. Personally, I think there should be a cap to expenses as if its unlimited it might attract potential surrogates for all the wrong reasons.

Even with these current payments, there is a great deal of altruism involved and I would hate to see that disappear. Reaching the right balance is difficult as surrogates come from all walks of life. Their needs are very individual depending so much on their personal circumstances: single parent or with a partner, working or on benefits, availability of family support for childcare, driver or non-driver...

Education, awareness and overcoming stigma

The biggest problem is the lack of surrogates volunteering. This is because our hands are tied regarding advertising, so lifting the ban will hopefully create an avalanche of new surrogates. 

Education is key, as many people still think surrogacy is illegal, so the stigma remains. Fertility issues should be taught in schools alongside sex education; it's not just about contraception and avoiding STDs.

I have waited 34 years to see the practice of surrogacy recognised as an alternative treatment to childlessness when all else has failed. In my heart of hearts, I have always felt that the generosity of spirit that motivates a surrogate mother to help another couple experience the joys of parenthood is second to none. Not a clandestine affair but a beautiful way for a child to be born amidst the love of the participants. The relationships forged often become lifelong friendships, as it should be. 

None of this would be possible without the incredible resilience that infertile couples demonstrate when they embark on their incredibly daunting journey to parenthood. I have nothing but admiration for their bravery.

I feel privileged to work in this field. It's so rewarding. The joy that a successful surrogate journey brings to all parties is magical. Surrogacy is a life-changing achievement and hopefully - with the implementation of new laws - there will be better protection for all those involved, while retaining the best interests of a surrogate child as paramount in all decision making. 

COTS has helped with 1063 surrogate births since we started in 1988. Nineteen of those babies have been born to male same-sex couples. Long may COTS continue.

30 September 2019 - by Dr Catherine Hill 
Can law reform solve surrogacy's problems? That was the big question at the start of the Progress Educational Trust (PET) and the Scottish Government's joint public event in Edinburgh on 24 September 2019...
19 August 2019 - by Natalie Gamble 
The Law Commission's provisional proposals for surrogacy law reform seek a delicate balance, but do they go far enough? ...
12 August 2019 - by Sir James Munby 
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...
10 June 2019 - by Jen Willows 
Recommendations to clarify UK surrogacy law have been announced by the Law Commission of England and Wales and the Scottish Law Commission...
8 April 2019 - by Antony Starza-Allen 
After many years of debate, surrogacy law reform is finally on the move. The Law Commissions of England and Wales, and that of Scotland, are now jointly evaluating areas of surrogacy law that have been identified as needing reform, with a view to making recommendations to Government in 2021...
7 January 2019 - by Eleanor Mackle 
Most surrogates think they should be able to claim reasonable expenses for carrying a child for someone else, a new report from Surrogacy UK has found. They also felt that legal parenthood should rest with the intended parents immediately after birth...
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