Survey published, recommending legal reform and pre-birth orders for UK surrogacy 

We are delighted to see the report from Surrogacy UK following its survey of surrogacy practice in the UK, and particularly its recommendations for law reform.  

After speaking to 434 respondents (including 206 intended parents and 111 surrogates from the UK) the survey report recommends that “the 30 year old law regulating surrogacy in the UK is out of date and in dire need of reform“.  

In particular, the UK’s archaic laws on parenthood are highlighted.  There is overwhelming support on all sides for an earlier legal process which enables the intended parents to be recognised as legal parents immediately from birth.  The survey shows that those engaged in UK surrogacy want to see an end to the current system in which the surrogate and her husband remain legally responsible for the child for up to a year post birth (even though not caring for them in practice).  Interestingly, ¾ of the surrogates surveyed believed they should not have a legal right to change their minds, reflecting that surrogates want the protection of legal structure as much as intended parents.  

The survey report recommends an ‘altruistic compensatory’ model for UK surrogacy in which “surrogates should be properly and openly recompensed for their time and expenses”.  In practice compensation is a source of enormous confusion and anxiety. Commercial payments are now routinely authorised by the UK court in international surrogacy cases, and in UK cases reasonable lump sum compensation of £10,000 – £15,000 is common (which may or may not reflect actual expenses – is time an expense? is inconvenience?). We too want to see transparency around this, recognising more openly what is already happening and has been for many years.  

The report recommends that the categories of families who can apply for parentage after surrogacy be broadened to include single and non-biological parents.  Again, we agree, of course. We are seeing an increasing variety of families conceiving children through surrogacy in the UK and abroad (with more single parents in particular). By denying parenthood to some of these families, the current law puts children’s welfare at risk, denying them legal security within the families who are raising them.  There is no justifiable reason for this discrimination.  The High Court is currently considering an application under the Human Rights Act on this so this is a live legal issue.

There is clearly more work to be done in understanding the full experience of parents going overseas. The report calls into question the reported scale of international surrogacy for UK parents, although it is notable that more than 90% of the parents who responded to this survey had been through UK and not international surrogacy – not surprising given that Surrogacy UK focuses on UK surrogacy arrangements.  Working at the coal face, we see the enormous numbers of UK parents going overseas for surrogacy, and their reasons for doing it, every day.  Their voice is often unrepresented, but the very fact that the numbers are disputed makes it abundantly clear that the official information collected about international surrogacy is woefully inadequate.  Whatever the true scale of international surrogacy, however, no one doubts it is growing and, like the authors of the report, we want to see the UK made a better option for recognised ethical surrogacy so fewer people need to go overseas.

Finally, we are delighted to see the recommendation that surrogacy should be better supported (including in schools and hospitals and with fair NHS funding for IVF).   As the report says “We are concerned that the lack of willingness of policy and lawmakers to talk openly about the realities of surrogacy and the need for legal reform leads to surrogate and intended parents feeling excluded and misunderstood.  This is in direct conflict with what we know makes for happy and mentally healthy children”. For far too long, surrogacy has been seen as a shady and semi-legal practice.  It breaks our hearts – although does not surprise us – to see the accounts of surrogates and their partners who were made to feel by officials that they were doing something wrong. Parents, children and the surrogates who make their families possible deserve the very best support and recognition.  The state needs to stand behind that.  Surrogacy is now an established way of building families which is not going to go away.  Research from world leading academics like Professor Susan Golombok and her team shows that its outcomes are positive, and that – when managed well – it is a good experience for all involved, creating lifelong relationships and longed for children.  

The UK has a proud history of leading diversity, progressively moving toward recognise same-sex relationships and non-traditional families over the last 10 years.  As this report shows, it is time we properly accepted and supported families created through surrogacy.