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Do the Law Commissions' proposals for surrogacy reform have the child's welfare at heart?

30 September 2019
Appeared in BioNews 1017

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. At the centre of the discussion were the Law Commission of England and Wales and the Law Commission of Scotland's provisional proposals for surrogacy reform, and the accompanying 500-page plus consultation document.

Introducing the event, PET director Sarah Norcross noted that surrogacy legislation has not been updated since 1985. It's a long time, she said, society and attitudes have changed. While reform is overdue, surrogacy is complex. It involves multiple people: surrogates, intended parents, the surrogate's partner and family, lawyers and doctors.

The evening's chair, family law solicitor Robert Gilmour, co-director of SKO Family Law Specialists, commented that's why it is so useful to get different disciplines talking to each other; what is needed is precisely this exchange of different perspectives.

Dr Sharon Zahra, clinical lead (tissue and cells) at the Scottish National Blood Transfusion service was the first speaker. Dr Zahra, who manages donations of organs, tissues and gametes from living and deceased people, commented that her view was one of ensuring safety: 'We go to incredible lengths to make sure any donation is safe.'

One very important factor in ensuring the safety of supply, she said, is that donations are always voluntary, always altruistic and any payment only covers reasonable expenses.

While welcoming in general the Law Commissions' proposals, she noted her concern that payments over and above expenses and loss of earnings for surrogacy could increase risks to the welfare of both the surrogate and any future children. 'This is very different to the way we treat all our other donors... how do you make sure the surrogate and any child are going to be safe?' she asked.

The next speaker was Dr Katarina Trimmings, senior lecturer in law at Aberdeen University. Dr Trimmings noted that the Law Commissions' proposals have the potential to solve many of surrogacy's problems and put forward a new framework for legal parenthood. 'It is very well-balanced in terms of who is protected and enables an outcome – intended parents as the legal parents at birth – that is not possible under current law,' she said.

However, Dr Trimmings highlighted that most international surrogacy arrangements will not qualify for the new pathway to parenthood and an application for a parental order will still be needed. There are problems, though, with this. Under this system, the courts never refuse to grant a parental order because the welfare of the child is the primary concern and not to do so would leave the child in legal limbo. 'If patients continue to be drawn to surrogacy abroad, it puts more women at risk of exploitation... most commercial surrogacy arrangements amount to the sale of the child,' she said.

Sarah Jones, chair of trustees at Surrogacy UK and a four-time surrogate (now embarking on her fifth surrogacy journey), was the final speaker. 'We want to keep surrogacy safe,' she said. 'We want to encourage UK-based surrogacy. We want to avoid commercialisation of surrogacy and we feel there is a definite misunderstanding regarding expenses. Surrogacy UK very much welcomes being regulated and we want those checks on everybody – there should be no vulnerability or coercion for all parties. Written agreements [between intended parents and surrogates] should be there.'

However, commenting on the Law Commissions' proposal that all parties take independent legal advice, she said: 'We do question whether a solicitor is the right person to deal with the emotional issues involved in surrogacy.'

Ms Jones welcomed the new pathway to parenthood, commenting that it will let people know where to go for support. 'We want good information,' she said. 'Too many people still think surrogacy is illegal.'

She said surrogates want intended parents to become the legal parents at birth, noting: 'Surrogates are very strong women who want to give their consent as soon as possible.' Commenting on the proposed national surrogacy register that children born through surrogacy can access for some information from 16, she said: 'This is an amazing change; all children need their story.'

Expenses and payment issues around surrogacy were one of the biggest talking points of the evening and it was noted that the Law Commissions have been careful not to offer an opinion on where the line should be drawn regarding expenses. Surrogacy UK's Sarah Jones was clear that surrogates do not want surrogacy to be commercialised.

'Surrogacy is a relationship between the intended parents and the surrogate. There's very little benefit to the surrogate for payment. If we move to a commercial model, we will move from the surrogate wanting to do it to needing to do it, and I don't think that’s a good thing,' she said.

Reasonable expenses, in her view, should cover anything the woman wouldn't have had to pay out for if she had not been pregnant, ranging from maternity wear, to vitamins, counselling or childcare, depending on a surrogate's circumstances.

'The term "reasonable expenses" is as frustrating to us as it is to everyone else – we want clarity and guidance,' she said, noting that a child born through surrogacy had told her: 'I don't want to feel I've been bought and paid for.' Dr Trimmings also called for clarification regarding what reasonable pregnancy-related expenses comprise.

Audience questions included: should there be a limit on the number of times a woman can be a surrogate, is the proposed lower age limit of 18 too young, should there be an upper age limit for surrogates and intended parents, and should surrogates have had their own children before becoming surrogates?

Dr Zahra felt that as each pregnancy adds additional risks, there should be some guidance on how may times a woman can be a surrogate. Sarah Jones said she would welcome guidance on this, and regarding the other questions noted that Surrogacy UK has recently accepted child-free surrogates, has a lower age limit of 21 but with additional checks, and has upper age limits between late 40s and early 50s with extra medical clarification. Regarding an upper age limit for intended parents, Robert Gilmour asked: 'Will it drive people abroad?'

On the topic of how many times a woman should be a surrogate, an audience member commented on the effect on children of all these different relationships in their lives, asking: 'How many meaningful relationships can children cope with?'

Dr Zahra said: 'The consultation deals with the concerns of the adult, but not the welfare of the child.'

Finally, the issue of double donation was addressed – where intended parents create a child without any genetic link to that child. The Law Commissions' proposals suggest that this should only happen where there is a 'medical necessity'. Robert Gilmour asked: 'How could this be pushed?'

PET director Sarah Norcross asked: 'If there is no genetic link should surrogacy be treated like adoption?'

Dr Zahra noted: 'Could we end up with surrogacy becoming "I'd rather not get pregnant" rather than "I can't"?' She concluded: 'The child needs to come first, not the adult; I don't get that sense in the consultation.'

The deadline for responses to the Law Commissions' consultation is 11 October 2019. Respond here.

PET is grateful to the Scottish Government for supporting this event. Our next public events will be:

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