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What should we do about surrogacy in the UK?

7 December 2015
Appeared in BioNews 831

Earlier this year, I wrote a comment piece asking for responses to an online survey about surrogacy (see BioNews 806). As I said at the time, 'while there are many things that are right about the way surrogacy is practised and regulated in the UK (particularly when compared to some other countries), there are also aspects of our laws that are outdated or just plain wrong'. While I'm happy that surrogacy is not prohibited here, I wondered why people seemed to be going overseas for surrogacy and was becoming troubled by the numbers reportedly doing so.

This survey was part of a larger project undertaken by a working group on surrogacy law reform, set up by trustees of Surrogacy UK and now published in the form of a report (1) (see also BioNews 829). We are pleased that Lady Mary Warnock, Professor Margot Brazier and Professor Susan Golombok have endorsed the report, given their involvement in the two government inquiries that have considered surrogacy and which formed the foundations of the existing law.

As a group we wanted to establish the true number of intended parents (IPs) from the UK who were going overseas for surrogacy, rather than entering an agreement with a surrogate 'at home'. In a Westminster Hall parliamentary debate in October 2014, Jessica Lee MP cited 1000–2000 children born via surrogacy to IPs from the UK annually, with up to 95 percent of these being from overseas arrangements. Our research – in which we considered data from the Parental Order Register, Cafcass, the Passport Office and the Ministry of Justice, among other sources – found nothing that could support either the cited number of annual surrogate births or the number reportedly born overseas. What we did find – as others had before us (2) – is that the proportion of overseas surrogacy arrangements is increasing year on year.

We received an amazing 434 survey responses, and I thank everyone who took the time to respond. Of the 434 respondents, 111 were women who are or have been surrogates, and 206 were IPs (either going through the process or who already had children by surrogacy). Of the IPs, 65 were in gay male couples, and 19 had undertaken overseas arrangements. The remainder of the respondents comprised mainly friends and family of those who had undergone surrogacy as IPs, as well as potential future IPs – people who already know surrogacy may be their only option to have a baby in the future. Others included clinic workers (including doctors, nurses, counsellors and administrators), lawyers, social workers and academics with an interest in surrogacy.

Of the 19 IPs who had or were using a surrogate from overseas, 14 had done or were doing so in the USA, three in India, two in Thailand and one in Nepal. Although we don't think this proportion of IPs (only 9.2 percent) is an accurate representation of the numbers of those  going abroad – given the channels through which the survey was advertised, as well as the investigations we conducted into the numbers cited by various government agencies and others – we do think this result is closer to the truth than the 'up to 95 percent' previously cited.

The most telling responses, however, came in relation to other questions. We found an extremely high level of ongoing contact between surrogates and the families they helped to create, according to responses from both surrogates and IPs who had undertaken surrogacy in the UK. Our results also showed that the vast majority of IPs either had told, or were intending to tell, their children how they were conceived, with most saying this would be before the children started school. This is encouraging, as we know from studies looking at children born following egg or sperm donation that not everyone tells, but that children and families tend to fare better psychologically when there is openness.

104 surrogates told us that they received compensation for the expenses they incurred, but over 95 percent of these received less than £15,000. These figures were mirrored among the respondent IPs who had undertaken surrogacy in the UK, with £10,589 being the mean sum paid to surrogates. The overall costs were unsurprisingly significantly higher for those IPs who had gone overseas for surrogacy, as was the mean average for surrogates' compensation (outside of clinical, legal and travel costs), which was £17,375.​

When asked about legal change, there was an overwhelming view among respondents that surrogacy law should be reformed (75 percent said a clear 'yes' to the question: 'Do you think surrogacy law in the UK needs to be reformed?'). The group with the highest proportion of respondents who supported reform were IPs who had been overseas, suggesting perhaps that legal barriers to successful surrogacy in the UK may push some people abroad. IPs who had been through surrogacy in the UK had the next highest proportion in support of reform. This too is perhaps not surprising, given that many of the free-text comments indicate that IPs feel poorly treated in the surrogacy system as a whole. In our report, we recommend better information and training for clinics, hospital staff and others about surrogacy.

The key reasons why reform was thought necessary were: the law being out of date, a perceived need for increased transparency about the system in the UK, a need to discourage people from going overseas for surrogacy, and a feeling that the law does not reflect the realities of surrogacy as practised and understood by those who have been through it. In particular the question of who are the legal parents of surrogacy-born children was key. I would agree – the existing law is 30 years old and, although some modernising has taken place (e.g. in terms of who is now eligible to apply for a parental order), it does not reflect the realities of surrogacy nor does it recognise the correct people as parents. The vast majority of our surrogate and IP respondents either disagreed or strongly disagreed that legal parenthood should rest with the surrogate (and her partner) and should only change after a parental order is granted, as is the case now. Most thought that IPs should be recognised as the legal parents at birth.

For these reasons and more, our report makes a series of recommendations for legal reform. The law urgently needs changing – not only have our courts had to circumvent or ignore various aspects of the law, but there is currently a legal challenge underway in relation to the inability of single people to become legal parents via surrogacy and the human rights implications of this. Most importantly, though we can't and don't claim to represent everyone who has been through surrogacy, we do now have the voice and opinions representing a large section of the surrogacy world, particularly the 'domestic' side. It seems, from the sheer and unprecedented number of respondents we obtained, that surrogates and IPs are happy about what they have done, and how they have done it, and want to share their experiences. What they would prefer, however, is a better legal framework that represents more accurately what happens in surrogacy, and it is on this basis that we urge the government to revisit surrogacy, in the best interests of the children and families concerned.

We urge people to write to their MPs to ask them to support reform. If you would like to contact your MP via a template email, you can do so via this link.

1) Horsey, K., 'Surrogacy in the UK: Myth Busting and Reform' Report of the Surrogacy UK Working Group on Surrogacy Law Reform
Surrogacy UK |  1 November 2015
2) The changing profile of surrogacy in the UK - implications for national and international policy and practice
Journal of Social Welfare and Family Law - Vol. 34, Issue 3, pp 267-277 |  14 January 2013
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