Reforming the Law on Surrogacy: Reflections on the APPG on Surrogacy Report and Law Commission's Consultation Paper
In April, the All Party Parliamentary Group (APPG) on Surrogacy launched the Report on Understanding of the Law and Practice of Surrogacy. The report follows various evidence sessions conducted with legal professionals, academics, intended parents and surrogates.
The fundamental premise of the report is laid out in the foreword, which states that 'surrogacy is normal, it is just another way for people to create families'. Working from this premise, the report makes a variety of recommendations as to how the law should be reformed to better protect the interests of all parties involved – the surrogate, intended parents and the children.
The work of the APPG on Surrogacy has coincided with the Law Commission's joint consultation paper with the Scottish Law Commission into the law on surrogacy and provisional proposals. At the launch of the APPG report in April, Professor Nick Hopkins from the Law Commission, endorsed many of the report's findings, and it is clear that the APPG and Law Commission are aligned in their views on the main aspects of the current law that are in need of reform.
Throughout the APPG's report, reference is made to how the 'welfare' and 'best interests' of the children need to be paramount in any new law that is developed; this type of paternalistic language is reflective of our current legislation that treats children as passive recipients of protection under the law. However, there is growing recognition of the importance of taking a child's rights-based approach to the regulation of surrogacy, evident throughout the Law Commission's consultation paper. This would see surrogate-born children treated as individuals capable of holding rights, rather than legislation being formed on the notion of welfare alone. There is of course an overlap between the welfare interests and rights of children born through surrogacy, but ensuring future laws move beyond a purely paternalistic model of regulation, and have been considered from a rights-based perspective, is crucial in ensuring the current, as well as future, rights and interests of surrogate-born individuals.
Notwithstanding the lack of explicit reference to the rights of the child throughout the report, there was consideration given to the right of the child to have access to information relating to the nature of their birth.
Giving a child access to information about their genetic and gestational origins could fulfil the right of the child under the United Nations Convention on the Rights of the Child. This outlines the child has both the right to know their parents (Article 7) and the right to preserve their identity (Article 8), with identity being understood to include a full understanding of their origins. This is also the approach adopted by the European Court of Human Rights in relation to the Article 8 right to private and family life.
The evidence sessions informing the report heard discussions in relation to the extent to which surrogate-born children are provided access to information relating to their origins, although no recommendation followed from this discussion. During evidence session three concerns were raised over the 'level of openness about genetic origins' as there is no legal requirement to disclose this to the child. Given the growing ability for people to access DNA testing, it was defined as a 'timebomb waiting to go off' for families who had used donor-assisted reproduction or surrogacy to have children.
The ability of children to access information relating to the nature of their birth was also an aspect addressed in the consultation paper. While it was not considered to be a pressing issue for stakeholders consulted during the consultation, it was rightly defined as an emerging issue (paragraph 10.5 – 10.10). Under the existing legislative framework, a donor-conceived individual can access non-identifying information about the donor upon reaching 16 years old and identifying information upon reaching the age of 18. The information stored on the HFEA Register is therefore available to any individual who wishes to access it. However, parents may not disclose to their child the nature of their birth thus meaning the child would never know to try to access the information. This concern was also identified in evidence sessions held by the APPG on Surrogacy.
Children born via surrogacy involving donor gametes will be able to access donor information stored on the Donor Register. However, irrespective of whether the surrogate's eggs have been used or not, given that the surrogate is the woman receiving the treatment, and is the legal parent of the child upon birth, she is not treated as a 'donor' and thus her information is not stored on the Register. Therefore, even in cases where the parents do tell their children they were born via a surrogate, the current provisions do not provide for the surrogate's information to be stored anywhere other than the original birth certificate. This is re-marked upon the grant of a parental order, effectively replacing the original birth certificate, meaning the surrogate's details do not show on the child's registration documents. A provisional proposal in the consultation paper is for a surrogacy register similar to the Donor Register, which would record the surrogate's, as well as any donors', information. While such a formalised and transparent system would definitely improve the surrogate-born child's access to information, their knowledge of whether or not they are affected is still entirely down to parental disclosure.
The extent to which the law can be reformed to ensure information relating to their birth is made available to surrogate-born children is contested. However, while the issue of access to information relating to the surrogacy birth may not be a pressing consideration for stakeholders at present, as more surrogate-born children reach majority and their voices are better heard in debates on the matter, any law reform needs to ensure that the children's rights, as well as welfare, are its central focus.