What is Surrogacy?
Surrogacy is the process whereby one woman (the surrogate) carries a child for another with the intention that the child should be handed over after birth (to the commissioning couple). The intention is that after birth the child and parental responsibility for it will be transferred to the intended parents and that those persons will become the legal parents of the child. It has been argued that there are significant problems within the current law and that there is insufficient regulation which makes it difficult to monitor the surrogacy process. Therefore, this article will explore these challenges to explain why the current law needs reforming.
The current law
The main legislation governing surrogacy comes from the Surrogacy Act 1985 and the Human Fertilisation and Embryology Act 2008 which includes making parental orders.
In addition, there are two types of surrogacies that exist, altruistic and commercial surrogacy which currently has a prominent blanket ban on it in England and Wales. This means that commissioning couples in the UK must look altruistically or abroad rather than going to a UK based agency as it is illegal in the UK. This is governed under section 2 and 3 of the Surrogacy Arrangements Act 1985 (SAA). The courts under section 1(1a) SAA promulgate that surrogacy arrangements are unenforceable in UK courts (inserted by the Human Fertilisation and Embryology Act 1990(HFEA)) due to the strong blanket ban. Moreover, this has caused mass debate and problems as it can be argued that this takes away one’s autonomy and right to a family life and therefore the law should be reformed.
Why should the law be reformed?
Firstly, it can be argued that the law should be changed so that legislation incorporates a new surrogacy pathway that will allow the intended parents to be the legal parents from birth. This is because currently, intended parents’ have to apply for a parental order within a timeframe of 6 weeks-6 months after the child is born providing they meet a checklist criteria such as being over 18 and so forth. Failure to do so can result in the surrogate having legal responsibility over a child which they do not wish to keep. This suggests that there is an ethical gap in the law as the welfare of the child should be paramount in every decision that is made rather than the child being passed around between adults like a transaction. This suggests that the courts lack an understanding of this, and the law should be reformed to ensure that parental and legal responsibility of the child is passed over immediately after it is born.
Secondly it can be strongly argued that the law needs to be reformed as the current view on ‘reasonable expenses’ is ambiguous within a surrogacy agreement. As a solution to this, the Brazier Report was introduced. The report suggested that surrogates should only get paid under genuine expenses and a draft list of what this entailed was introduced. Nevertheless, this caused problems in the law because it remained a draft. Likewise, the current surrogacy laws fail to meet the needs of society because there is no clear definition of what reasonable expenses means. The Brazier Report put forward that although it is illegal to pay a surrogate on a commercial basis, surrogates are often paid up to £15,000 under ‘reasonable expenses’(altruistically). This shows that the law is incoherent to meet the needs of society, as altruistic surrogates are paid more than what is required, yet commercial arrangements are illegal. Re X v Y 2008 exemplifies the courts subjective approach when dealing with excessive reasonable expenses. In this case Hedley J said he felt “most comfortable” with ignoring that excessive payments were given. Consequently, this shows the current law on surrogacy does not meet the needs of society and needs to be reformed. This suggests the law is not fit for purpose in the modern society because is superannuated.
Finally, it can be argued that the current law on surrogacy should be reformed to legalise commercial surrogacy because the current law is ingrained in prejudice which, results in certain members of society having to consider adoption (which may not be beneficial). The current law shows prejudice towards certain members of society because it restricts them from forming a family under commercial arrangements (LGBTQ+ communities / those with medical conditions). This, prejudice conflicts with one’s rights under the European Convention on Human Rights (ECHR) to form a family (Article 12 ECHR) and privately enjoy it (Article 8 ECHR). As a result of this prejudice the blanket ban on commercial surrogacy means those who cannot find an altruistic surrogate, may have to resort to adoption. However, adoption may not be ideal for the commissioning parents who want a genetic link to the child. In continuation, the current law is damaging to LGBTQ+ and same sex partnerships because the law is based on biased viewpoints which are implemented in the Warnock Report. It prominently states that “it is better for children to be born with both a father and mother”. These harmful and offensive views are no longer fit for purpose in a modern society. Meaning that as society has evolved, the current law ought to be changed and reformed to meet the needs of society to allow all members of society the right to a family (if they do not know an altruistic surrogate) without feeling prejudice or discrimination against themselves. Since the law preaches equality under Article 14 ECHR, it is necessary in a democratic country that the law fulfils its purpose by making commercial surrogacy legal.
What do we think?
In conclusion, there is no doubt that the current law surrounding surrogacy is outdated and in need of urgent reform in the UK to keep up with the needs of a modern society. The current law should be reformed in order to create a scrutinising and regulated approach so that surrogacy is carefully monitored and regulated. Moreover, the SAA is in urgent need of reform because the current blanket ban causes more harm than good by prohibiting women’s autonomy, restricting their liberty and Human Rights as well as seeing women as incompetent at making decisions in relation to commercial surrogacy. This tells us that the SAA no longer fits in with the needs and demands of a modern society. As a firm who pioneers change, we encourage such a change.
We are happy to discuss these changes and other areas of surrogacy arrangements, so please do get in touch for a fee half hour call to discuss your requirements. The right legal support is so important when starting your journey and we have been supporting Intended Parents for many years so are well equipped to help you.