'Brilliant Beginnings', a new non-profit UK surrogacy and egg donation agency, was launched earlier this year by Natalie Gamble Associates with the stated aim of supporting intended parents, egg donors and surrogates through surrogacy arrangements (see BioNews 719).
This new agency will join other established surrogacy agencies such as COTS and Surrogacy UK in assisting and guiding those who wish to found a family in this manner. Whilst such agencies serve a vital function, they are limited by the legal landscape in which they operate. The principal statute which governs this area, the Surrogacy Arrangements Act 1985, as amended by the Human Fertilisation and Embryology Acts 1990 and 2008, offers little coherence or guidance to those concerned. The 1985 Act, with its focus on barring commercial surrogacy, is now out of touch with reality.
'Brilliant Beginnings' is a brilliant beginning to the extent that it is being set up by legal experts with sound knowledge and experience of the law in this area. It also pledges to reinvest resources into campaigning for changes to surrogacy law and regulation. But 'Brilliant Beginnings' must operate under the same unsatisfactory legal landscape as the other voluntary organisations. Echoing others, we argue the law in this context 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 (1), the law is relegated to cleaning up the aftermath. It is the broader legal landscape that must alter if there is to be better regulation and we propose a three-stage proposal for change.
Firstly, measures need to be implemented which would not require changes in legislation. Reliable and accurate data on surrogacy in the UK is rare. Any attempt to develop proper and effective regulation must be based on sound knowledge and information. Improved data collection is called for; more information could be gathered through parental order forms, for example. We question whether accreditation of surrogacy agencies is necessary to ensure that people are given sound and proper assistance.
Our second proposal involves making minor but contentious changes to existing legislation; in particular, allowing a moderate fee to be paid to the surrogate. While reasonable expenses are currently permitted, parental orders (POs) have still been made in cases where expenses have exceeded what is deemed 'reasonable'. The Human Fertilisation and Embryology (Parental Orders) Regulations 2010 makes child welfare the paramount concern. This provision makes it unlikely courts will ever refuse to retrospectively authorise payment and grant a PO when a baby is already residing with commissioning parents.
Thus it is clear that even for those that maintain commercial surrogacy should be prohibited, the law is failing to achieve this aim as increasing numbers of people go overseas in order to seek out a surrogate (partly due to inadequate law and regulation in the UK). We suggest that a minor change be made to the legislation permitting payment of a 'moderate fee' and this would make many arrangements much clearer and open. How this 'moderate fee' will translate into practice is a matter for debate. Likewise, the questions of whether payments should be restricted to moderate amounts, how much is moderate and what role the surrogate mother should have all warrant further consideration.
Our third proposal advocates setting up a Warnock-type review to consider a new Act and creating a system of pre-conception regulation. The time is ripe for an effective and wide ranging review of how surrogacy should be regulated in the UK. The new regulatory regime should seriously consider a number of key issues: whether we make surrogacy contracts post-birth enforceable; allow single people to apply for parental orders; allow immediate transfer of legal parentage; allow gestational surrogacy only; allow surrogacy only in cases of medical necessity; and whether we should make the 'best interests' of the child central.
Only once we have a better regulatory framework can we have a truly 'brilliant beginning'.