The Law Commissions have not yet made any proposals about how the law should regulate payments to surrogates, but have highlighted how the current law is working and prompted a discussion.
An unclear framework on expenses
Although the UK is often said to have a surrogacy framework in which surrogates can be paid no more than expenses, the Law Commissions have highlighted that there is in reality no bright line between expenses and compensation, and a range of approaches to payments is taken in practice.
The Law Commissions have also set out the difficulties associated with regulation by the family court, given that it has not been able to enforce limits in retrospect given its duty to safeguard the welfare of the child. The Law Commissions have asked what mechanisms could be used to ensure that limits are complied with, if any are imposed.
What the Law Commissions say
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.
Very few parental order applications included a detailed, itemised breakdown of the expenses paid to the surrogate, with accompanying receipts.
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.
The Law Commissions have broken down payments to surrogates into the following categories:
Essential pregnancy costs
Unavoidable pregnancy costs, such as maternity clothes
Additional pregnancy costs
Optional pregnancy costs, such as special fitness classes
Costs specific to surrogacy, such as the need to make a will
Quantifiable lost wages resulting from the surrogacy, as well as wider losses such as lost potential earnings
Where means-tested benefits are reduced or withdrawn due to other payments made to a surrogate
Compensation for pain, suffering and inconvenience
Payments to compensate for risk and inconvenience, including fixed sums for embryo transfers, multiple pregnancies, pregnancy inconvenience generally, and life insurance to compensate for death
Nominal gifts, such as flowers or jewellery, and more substantial ones
Payments for services
A sum agreed for the surrogate’s gestational services (provided this is due irrespective of whether the child is transferred, and therefore not for the sale of a child)
All the categories of payments to surrogates the Law Commissions have set out should be permitted
The categories the Law Commissions have set out are useful: they will help guide surrogacy teams to consider all eventualities. However, we think all should be permitted, since we do not think it is possible for the different categories to be defined clearly enough to allow some to be permitted and some prohibited.
We support surrogate choice
We understand that altruism and compensation are not mutually-exclusive alternatives and that surrogates who wish to have some benefit for their own families are no less driven by the desire to help others. We support surrogates who wish to be paid a lump sum which includes an acknowledgment of their commitment, or a holiday or some other form of compensatory payment, however it is classified. We also support surrogates (and surrogacy organisations) which wish to stick to a narrower expenses-only approach, however they choose to define it. As with other aspects of surrogacy, we don’t think the law should tell women what is right for them and their families.
Surrogate compensation is already permitted by UK law
All the categories of payment set out by the Law Commissions are already permitted in practice. The family court routinely authorises payments of more than expenses where it is clear compensation is paid, and turns a blind eye where no breakdown of payments is provided. There has never been a case where a parental order has been refused.
We do not think there is any practical way in which the law can effectively enforce restrictions on financial arrangements agreed between private individuals.
The current fudge is problematic because it lacks transparency
Requiring payments to fall within a particular category (whether one or several) creates pressure, confusion and anxiety. Will the figure agreed be questioned by the court? Can a surrogate claim for a particular item? Can the intended parents buy her dinner or give her a gift without breaking the rules? Restrictions make payments a much more difficult issue to manage than they need to be in practice, and this adds pressure to an already emotionally-charged relationship. Ethical surrogacy relies on clarity, transparency and informed consent.
We think that the law should be more honest about what it already allows so that everyone can deal with the finances transparently.
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
Changes to the way UK surrogacy is regulated
The Law Commissions propose changes to surrogacy organisations, advertising, professional services and surrogacy contracts
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