The Law Commissions have recommended new categories of permitted payments and a new approach to itemising expenses
A new framework for expenses
The Law Commissions have recommended new rules to tighten up what UK surrogates can be paid. ‘Reasonable expenses’ will be replaced with a more explicit list of ‘permitted payments’ (including insurance, screening costs, additional dietary requirements relating to the pregnancy, lost earnings, costs of maintaining contact, medical costs, travel and accommodation, a modest recuperation holiday and modest gifts). Payments for general living costs, compensation and payments for services will be prohibited, along with anything else which is not expressly permitted.
In practice, surrogacy teams will have to produce a schedule of anticipated payments at the outset which a Regulated Surrogacy Organisation will have to approve for them to qualify for the new pathway to parenthood. After the birth the parents will then have to make a statutory declaration to confirm they have only made permitted payments, with criminal offences for those who make a false declaration and possible civil penalties for those who pay too much (although it is not clear how this would be enforced).
Finally, the Law Commissions have recommended that actual costs be reimbursed during the surrogacy process as they arise: it will no longer be permissible to agree an ‘allowance’ (either overall or for specific items) at the start.
What the Law Commissions found was happening on the ground in 2018
Very few parental order applications included a detailed, itemised breakdown of the expenses paid to the surrogate, with accompanying receipts.
The range of payments varied considerably. In one familial arrangement the applicants declared paying the surrogate £470. By contrast, five of the files reviewed (9.61%) involved expenses being paid more than £20,000.
In the context of considering the payments made by intended parents to surrogates we think that “commercial” and “altruistic” suggest the existence of a clear division between two forms of surrogacy, when those lines may in practice be blurred.
Our view on the recommendations
They are unworkable in practice
As is the case now, restrictions on payments will be impossible to enforce in practice.
It is also insensitive and awkward to expect UK surrogates to seek specific reimbursement for every item they spend and will risk fostering an atmostphere of distrust if the intended parents have to keep what is requested under constant review. The longstanding practice of agreeing an overall amount upfront enables the finances to be managed practically and respectfully, and should not be withdrawn.
We support surrogate choice within a safe regulated framework
Altruism and compensation are not mutually-exclusive alternatives: surrogates who wish to receive some benefit for their own families are no less driven by the desire to help others. We support surrogates who wish to be paid only expenses, just as we support surrogates who want some financial acknowledgment of their commitment and inconvenience, and intended parents who want to show their gratitude in a way that is comfortable and acceptable to their surrogate. As with other aspects of surrogacy, we don’t think the law should tell women what is right for them and their families.
In the context of a regulated framework with careful safeguards designed to guard against the risk of exploitation, we think the law should support surrogate choice and enable honesty and transparency about what is being paid.
A tightening up will worsen the existing shortage of UK surrogates
As is clear from the Law Commissions’ own findings, many UK surrogates currently receive a financial acknowledgment. It is not illegal under the current law and there has never been a case where a parental order has been refused.
The Law Commissions’ proposals therefore represent a step backwards. By reducing what surrogates can receive and introducing a new pressure to justify every penny, the proposals risk disincentivising women from becoming surrogates and worsening the already chronic shortage of UK surrogates.
More on payments to surrogates
How much can a UK surrogate get paid?
What is the difference between altruistic and commercial surrogacy
What we think about surrogacy law reform
Other Law Commission proposals
No significant change for international surrogacy
The Law Commissions propose to retain parental orders and the existing immigration rules for children born through surrogacy overseas
New regulation for UK surrogacy
The Law Commissions have recommended a new regulated framework for UK surrogacy
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