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Surrogacy law change: The UK needs to look across the pond

28 June 2021
By Zaina Mahmoud
PhD student at the University of Exeter, comparing the legal and health frameworks governing surrogacy and the lived experience of surrogates in Britain and California.
Appeared in BioNews 1101

The long process of reforming surrogacy laws in the UK continues, with legislation expected from the Law Commission of England and Wales and Scottish Law Commission early next year (see BioNews 1097).

In addition to consulting with stakeholders and experts, the joint law commissions have looked abroad for inspiration. The UK is not alone in updating its surrogacy laws: earlier this year, New York state passed the Parent-Child Security Act, which claims to streamline the process for establishing parenthood for non-biological parents, allows gestational surrogates freedom to make their own health decisions – while clarifying they are not responsible for healthcare costs – and establishes legal criteria for gestational surrogacy agreements. Colorado recently joined New York and 24 other US states in regulating surrogacy, with Governor Jared Polis signing HB1022 [Surrogacy Agreement Act] into law in May 2021. These new reforms in Colorado are designed to safeguard prospective parents, surrogates and children. 

The state of Colorado now has eligibility requirements for surrogacy: both surrogates and intended parents must be at least 21 years of age, undergo medical screening, and have independent legal representation licensed in Colorado throughout the arrangement. Surrogates must have had at least one child already and must additionally undergo mental health screening. No such screening is required for intended parents.

Currently, in the UK section 54 of the Human Fertilisation and Embryology Act 2008 (HFE Act 2008) sets out eligibility criteria for parental orders – the court orders necessary to transfer legal parenthood from the surrogate to the intended parents.  Of particular relevance, at least one applicant must be related to the baby and live in the UK. There are no legally mandated eligibility criteria for surrogates, nor is there any required psychological or medical screening. Where a fertility clinic is used, surrogates and intended parents must undergo counselling to make sure they understand the implications of being or using a surrogate. However, not all surrogacies will require the use of fertility clinics, as many 'traditional' genetic surrogacies occur informally using 'DIY' methods.

Implications counselling should be required and needs to be made universal in the UK to protect the health and wellbeing of all people involved, as it has been in Colorado. In this country, we should go further than Colorado, and require mental health screening rather than just physical 'medical' screening and counselling for both surrogates and intended parents. Surrogacy can be a joyful event for everyone involved, but the relationships flowing from surrogacy can be complicated. It is crucial that all parties have the same aims, and receive support to mitigate any potential stressors arising out of the shift to parenthood.

In Colorado, there is no requirement for there to be two intended parents or for intended parents to be married, meaning that single people can use a surrogate. There is also no requirement that intended parent(s) be genetically related to the baby. In early 2019, an amendment inserted section 54A into the HFE Act 2008, allowing single individuals to apply for parental orders for the first time. However, collaborative co-parents are still unable to apply for parental order, and the current UK framework does not allow for ‘double donation’ – where neither intended parent is related to the baby. Colorado’s recognition of family diversity is welcome, and should happen in the UK. With the law commissions reviewing the prohibition against ‘double donation,’ it may be time for co-parenting and other family forms to benefit from legal recognition. 

Some US states are moving away from the lasting legacy of the Baby M case, where a genetic surrogate reneged on the agreement, citing her attachment to the baby. Colorado’s new legal framework is unique in treating gestational and genetic surrogacy (where the surrogate uses their own eggs), similarly. Regardless of the arrangement pursued, surrogates may receive compensation and expenses for their involvement. In both types of surrogacy, intended parents – and not surrogates – are legally recognised as parents. Treating gestational and genetic surrogacy similarly respects surrogates’ autonomy, shying away from the assumption that a genetic link would render genetic surrogates less likely to honour the agreement to hand over the baby after birth. Instead, genetic surrogates are rightfully seen as both egg donors and surrogates.

Currently, the law in the UK does not differentiate between the two forms of surrogacy. Since legal motherhood is assigned on the basis of gestation, regardless of whether the surrogate’s egg, the intended mother’s egg, or a donor egg is used, the surrogate is automatically recognised as the legal mother. This is a major concern for intended parents, children and surrogates. I hope the Law Commissions’ recommendations, expected in early 2022, will end this, allowing for the intended parents to be recognised from birth, regardless of whether the surrogacy is gestational or genetic. By doing so, surrogates’ autonomy is respected (as their intention is not to parent the child) and intended parents’ choices will equally be respected. 

The Coloradoan approach could be an ideal model for the UK. Wider than the New York Parent-Child Security Act, the Colorado legislation regulates both genetic and gestational surrogacy, which widens access to surrogacy for both surrogates and intended parents. When genetic surrogacy is seen as a viable alternative to gestational surrogacy, the process is less time-consuming and less costly, as less medical intervention is required.

Reforms are likely to be controversial, as is surrogacy itself, however they are essential to reflect the needs of contemporary society. The law commissions’ consultation papers indicate that we are headed towards a more accepting and inclusive regulatory framework. Ideally, proposed reforms to UK legislation reforms will additionally safeguard the health and wellbeing of all those involved.  

SOURCES & REFERENCES
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