The Human Fertilisation and Embryology (HFE) Bill is currently wending its way through Parliament amidst a storm of controversy and debate. An issue which has provoked very little attention is surrogacy, and yet this is where the law most desperately needs reforming.
Surrogacy arrangements currently get the raw end of the deal from laws which were designed to protect parents conceiving with egg and sperm donors. These provide that the legal mother of a child following assisted conception is the woman who carries it, and that if she is married, in most cases her husband is the legal father. Of course, these rules are invaluable to couples conceiving with donor eggs or sperm, but they produce exactly the wrong outcome for surrogacy arrangements. If the surrogate mother is married, neither intended parent will have any legal relationship with the child at birth, even if the arrangement is a host surrogacy in which both are the biological parents.
Section 30 of the Human Fertilisation and Embryology Act 1990 does provide a crude mechanism for rectifying this. The intended parents can, after the birth, apply for a 'parental order' to reassign legal parenthood, provided they meet various criteria designed to ensure that the arrangement in question is non-commercial and that everyone involved consents.
The HFE Bill will extend the parental order rules so that unmarried and same sex couples can apply as well as married couples. These changes are very welcome (though it makes no sense to continue to exclude single people who conceive their own genetic child through surrogacy, particularly now that the law is being changed to make it clear that single women should not be discriminated against in the provision of donor insemination).But all this misses the point that there are more fundamental problems with the current law which need to be addressed.
International surrogacy arrangement
First, the lack of recognition of the intended parents as legal parents at birth causes very significant problems, particularly in the context of international arrangements. It is increasingly common for patients to travel abroad for fertility treatment, and many foreign jurisdictions have a more permissive approach to surrogacy than the UK. Countries such as the Ukraine and India permit commercial arrangements under which the intended parents are registered as the legal parents at birth. Foreign clinics commonly advise patients that the legalities after the birth are very simple, and patients are unlikely to question this information, particularly given the absence of contrary advice available elsewhere.
What many patients do not realise, though, is that if they are domiciled in the UK, UK law applies to them regardless of where the conception occurs. This can result in the unfortunate situation where, at birth, neither the surrogate nor the intended parents are legal parents under their own home systems of law and the child is born an orphan. Any foreign birth certificate naming the English parents as the legal parents cannot be relied upon for UK legal purposes.
There is then no straightforward way for the English parents to apply for entry clearance to bring their child into the UK under the immigration rules, and in many cases the child will be 'stateless' which means he or she cannot even obtain a passport. If a commercial agreement has been made in the foreign jurisdiction, this will also prevent the English intended parents obtaining a parental order or an adoption order in the UK to become the legal parents. Commercial agreements are legal in the foreign jurisdictions I have mentioned, and UK patients may enter into them quite innocently.
Ultimately, a biological child of two English parents may be left parentless and stateless in a foreign country, with the parents unable to secure a right to raise their own child or to bring him or her into the UK.
Secondly, surrogacy patients suffer discrimination in the storage of their embryos and gametes. Fertility patients are currently permitted to store embryos for five years (which will be increased to ten after the HFE Bill becomes law) and gametes for ten years. However, in certain special circumstances in which patients are storing gametes/embryos to create their own family and are, or will become, infertile (for example as a result of cancer treatment), they are permitted to store for an extended period, until the female partner is approximately age 55.
But surrogacy patients in most cases are excluded from these regulations. This unfair discrimination must be reviewed. It seems utterly arbitrary that a woman who has her ovaries removed following cancer can store her embryos until she is 55, but a woman who has a hysterectomy (and so needs the help of a surrogate to carry her child) can only store her embryos for 5 years.
Maternity leave rights
Finally, surrogacy patients currently have no right to time off work (paid or unpaid) to look after their newborn children. The statutory framework for maternity pay is closely tied in with documentation received during pregnancy, and this excludes intended mothers in surrogacy cases (while benefiting the surrogate mother). Similarly, statutory maternity leave is limited to birth mothers and does not provide leave or associated employment protection rights for the intended mother in surrogacy situations. Adoption leave is also not available because it only applies where a child is newly placed by an adoption agency, and this does not apply in surrogacy cases.
There cannot be any possible justification for excluding families created through surrogacy from employment protection and maternity leave.
The traditional approach of the law to surrogacy is that it is an exotic rarity which should be discouraged. The law only assists non-commercial informal arrangements, and if parents are unable to access rights like maternity leave as a result of having entered into these situations, then so be it.
But in the modern world, with patients increasingly crossing the globe for fertility treatment, we need to seriously question this basic approach. We also need to take account of our modern human rights and anti-discrimination laws which do not allow unfair treatment of minority groups, however small they are. There may be good policy reasons for discouraging the commercialisation of surrogacy, but we need to understand the world we live in, and to address with more courage the issue of whether our surrogacy laws are still fit for purpose in the twenty first century.