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Surrogacy law: a call for change?

5 August 2013
By Susan Imrie and Vasanti Jadva
Centre for Family Research, University of Cambridge
Appeared in BioNews 716

Surrogacy arrangements in the UK can be a successful route to parenthood and a rewarding experience for those involved. Surrogacy law, however, is complex, and concerns have been raised about the varying quality of advice provided to individuals considering surrogacy. In light of this, the Human Fertilisation and Embryology Authority (HFEA) intends to update its guidance on surrogacy for clinics, and while we welcome this clarification, it is also important to consider how surrogates feel the law shapes their experiences. Do current laws help or hinder surrogacy arrangements? How do surrogates navigate the potential pitfalls and where do they turn to for information? Could changes, legal or otherwise, be introduced to smooth the process for surrogates and intended parents (IPs)? Furthermore, it is crucial that the views of traditional (or 'genetic/straight') surrogates are not overlooked, as their route to surrogacy bypasses clinic involvement.

Over the past two years we have been carrying out in-depth interviews with surrogates and their families about their long-term experiences of surrogacy. Around half of the surrogates had carried out surrogacies some years ago and half were still actively involved in surrogacy. As part of this process we asked participants how they viewed surrogacy law, whether they had concerns about how surrogacy is carried out, and whether they could recommend improvements.

Surrogates taking part in our study frequently singled out the lack of parental leave allowance for IPs as being unjust. Since data collection ended, proposals have been included in the Children and Families Bill to bring parental leave for IPs in line with legislation on leave for adoptive parents, and this has been broadly welcomed by those involved in surrogacy.

A further area highlighted by some surrogates was the complex question of who is named on the child's birth certificate, with several married surrogates expressing discontent with having to register their husband as the child's legal father. In one case, a surrogate reported that her husband, from whom she had been separated for some time, had to be named on the birth certificate, a situation she called 'bizarre'. This view was echoed by some surrogates' partners who raised the concern independently in their interviews.

Similar concerns were raised by other surrogates who mentioned that in the period before a Parental Order is granted, the surrogate is legally responsible for decisions concerning the baby, a responsibility many stated should lie with the IPs. This question becomes particularly pertinent if the baby needs emergency medical care. On the rare occasions where this situation had arisen, surrogates felt it had been handled well by hospitals, but it is possible that greater clarity would be beneficial to support surrogates and IPs at this already stressful time. Some surrogates argued for a mechanism to be introduced whereby parental responsibility could be transferred to the IPs at birth. Whilst we recognise the difficulties inherent in balancing the interests and care of all the parties involved throughout the surrogacy arrangement, we feel that the questions pertaining to legal responsibility for the child in the months following birth would benefit from further consideration and discussion.

There was a call from many surrogates for information on surrogacy to be more widely available, and for healthcare professionals and administrative staff to be better informed. While some surrogates reported that hospital staff had been well-informed and supportive, facilitating a smooth surrogacy arrangement, others mentioned cases where hospitals had been less accommodating, for example by making it difficult for both IPs to be in the room during prenatal scans. In another case, registry office officials gave a surrogate incorrect information about registering the child's birth. Had she not checked the information with her surrogacy organisation, she may have risked jeopardising the Parental Order.

Many surrogates identified surrogacy organisations as a valid source of support and, in most cases, their primary source of information. Some surrogates raised concerns about surrogacies arranged without surrogacy organisations' involvement and the lack of support available to those who chose this option. Conversely, several surrogates who had carried out independent arrangements mentioned the laws against advertising and the difficulties finding couples.

Much recent debate has focused on legislation around expenses. Most surrogates we spoke to were happy with the current system of receiving reasonable expenses, and perhaps this view is unsurprising given that most surrogates had experienced positive surrogacy arrangements within the current framework. There was also a strong belief that introducing commercial surrogacy would result in women acting as surrogates for the 'wrong reason' - ie, having financial rather than altruistic motives. Many thought the current system works well as it prevents women from receiving vast sums of money, whilst also giving some flexibility in the amount received, thus recognising the individual nature of each pregnancy.

The study's findings echo calls for a review of surrogacy laws and highlight areas where greater discussion and clarification would be beneficial for all concerned. We urge that any review should include consultation with those directly affected by surrogacy, specifically surrogates and their families, IPs and surrogacy children, who have direct experience and knowledge of this complex and evolving field.

15 June 2015 - by Dr Kirsty Horsey 
A working group from Surrogacy UK has devised an online survey seeking views on people's experiences of surrogacy in the UK and opinions on the way it is regulated...
6 October 2014 - by Antony Starza-Allen 
The UK's High Court has granted a parental order following surrogacy despite a six month deadline for making them having passed, describing strict enforcement of the deadline as 'almost nonsensical'...
6 May 2014 - by Andrew Powell 
I've always been interested in the law related to surrogacy. Through the Pegasus Scholarship Scheme founded by the Inner Temple, I obtained a placement at a law firm in Los Angeles that specialised in surrogacy and fertility law. I was keen to see how commercial surrogacy operates within a regulated paradigm...
16 December 2013 - by Daniel Malynn 
This event, hosted by the Bar Council, looked the options and potential pitfalls same-sex couples can face can face in accessing surrogacy both in the UK and overseas...
30 September 2013 - by Dr Amel Alghrani and Dr Danielle Griffiths 
Surrogacy law is a mess and no longer fit for practice. As increasing numbers resort to the use of international surrogates or the 'murky waters' of the World Wide Web to find a surrogate, the law is relegated to cleaning up the aftermath...
29 July 2013 - by Ari Haque 
Indian surrogate mothers are frequently underpaid and insufficiently cared for, a report from an Indian charity claims. The Centre for Social Research in New Delhi says there is little protection for surrogates in a growing industry without an adequate legal framework...
24 June 2013 - by Dr Linda Wijlaars 
Children born with the help of sperm or egg donation or via surrogacy are well-adjusted at the age of ten, a study says...
3 June 2013 - by Antony Starza-Allen 
A UK High Court judge has said applications for parental orders in international surrogacy cases should be encouraged and made promptly...
11 March 2013 - by Dr Kirsty Horsey 
Once upon a time, motherhood was certain. It was proved by giving birth. The Latin maxim 'mater semper certa est' that told us so was irrefutable. Whether or not that was ever actually true, it has for a long while been biologically, as well as socially, questionable....
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