Changing UK Surrogacy Laws – Our Campaign

Responding to the Law Commissions’ consultation

REFORM AREA 6: The Law Commissions ask an open question about what kinds of payments should be allowed in surrogacy arrangements

Questions 28 to 40 in the Short Form Survey relate to the bundle of proposals discussed below .

There are two parts to our guidance on this bundle of reforms:

  1. A summary of the Law Commissions’ provisional proposals 
  2. Surrogacy UK’s emerging views on the provisional proposals (please note these are provisional views that will evolve as we consult with our members and the surrogacy community)
SUMMARY OF THE LAW COMMISSIONS’ PROVISIONAL PROPOSALS 
OVERVIEW: In order for the Law Commissions to analyse the responses to their open question they have created 8 categories of payments and asked for your views on each category. The categories are for their analysis only and are not necessarily to be used in any new legislation that may be drafted.
WHAT ARE THE CATEGORIES? The 8 categories are as follows

  • Essential costs of pregnancy: these include items that are completely unavoidable during pregnancy/birth such as maternity clothes, additional food and pregnancy supplements
  • Additional costs of pregnancy: these include items that make a pregnancy more comfortable but (according to the consultation paper) are not essential, for example child care costs, domestic help and travel expenses outside of public transport
  • Costs associated with a surrogacy arrangement/pregnancy: these are costs that are specific to surrogacy, for example the cost of meeting up or maintaining contact, the cost of meeting the requirements of the new pathway e.g. legal advice and implications counselling, the cost of making a will or the cost of a recuperative holiday for a surrogate and her family
  • Loss of earnings: these payments reimburse the surrogate (whether she is employed or self-employed) for loss of earnings that are incurred as a result of pregnancy or birth and would cover the shortfall after any maternity payments or other benefits have been paid to the surrogate. As well as actual lost earnings. This category includes potential lost earnings, which the Law Commissions split into two buckets: 1) potential earnings e.g. lost overtime or commission payments/bonus. These should be calculable with a degree of certainty (for example evidenced by looking at the preceding year’s income); 2) other lost potential earnings. These are speculative, for example potential lost new job opportunities. It proposes that only the first bucket should be permitted in this category and asks for your views
  • Loss of welfare entitlement: this should only apply for means-tested benefits as other types of benefits have allowances for pregnancy/birth. The category recognises that the types of expenses that are deductible under social security law are more narrowly defined than the current surrogacy law allows, meaning that surrogates may experience a reduction in their benefits due to payments that would be considered as expenses under surrogacy law but not under social security law. The consultation paper argues that these types of costs could be treated in the same way as lost income and could therefore be covered by IPs
  • Gifts: the consultation paper asks whether only modest gifts should be allowed within this category e.g. a modest piece of jewellery or keepsake. It asks, if allowed, should this category be capped or freely negotiated between the parties
  • Compensation for the pain and inconvenience of being a surrogate: this category does not refer to actual lost income that may result from pregnancy or birth related complications or procedures. Instead, it captures payments that would be made to compensate for the fact that a pregnancy, procedure or complication has occurred (or may occur), for example a payment for each insemination, or in the event of a miscarriage or termination. The consultation paper asks, if allowed, should this category be capped or freely negotiated between the parties
  • Payment for being a surrogate: this category refers to payment made to a woman for her service as a surrogate i.e. her gestational service. It would not be a payment for the child and would not be conditional on the ‘hand-over’ of the baby or on a live birth. The consultation paper asks, if allowed, should this category be a capped fee set by the regulator or freely negotiated between the parties
ENFORCEABILITY:
  • The consultation paper proposes that the types of payment allowed should be the same under both the new pathway and the PO route and asks for your views
  • However, it also suggests that if IPs/surrogates do not comply with the limitations on payments then they would fall out of the new pathway and have to follow the PO route
  • It proposes that IPs or surrogates who do not comply should not be criminalised
  • The consultation paper suggests that the surrogate should be able to enforce the financial terms of a surrogacy arrangement and that her ability to do so should not be dependent on her complying to any terms that relate to her lifestyle
HOW PAYMENTS COULD BE MADE:
  • The consultation paper asks how payments should be made to a surrogate and if receipts should be provided
  • The consultation paper asks if payments should be reduced in the event of a miscarriage or termination
WHAT ARE SURROGACY UK’S EMERGING VIEWS ON THE PROVISIONAL PROPOSALS? 

PLEASE NOTE THESE ARE PROVISIONAL VIEWS THAT WILL EVOLVE AS WE CONSULT WITH OUR MEMBERS AND THE SURROGACY COMMUNITY

OUR VIEW ON THE TYPES OF PAYMENTS THAT SHOULD BE ALLOWED Our research suggests that the majority of surrogates and IPs undertaking surrogacy in this country do not support a move towards a commercial model (one that enables surrogates to profit from surrogacy). In fact, many surrogates have spoken to us about the potential stigma that they would face under a system that permits surrogates to charge for their gestational services (even if they themselves chose not to). 

We have also spoken to IPs who are concerned over the impact a commercial system would have on affordability and access to surrogacy. Sadly, surrogacy already has a significant financial burden on IPs and we would hate to see costs increase further 

Finally, we believe that legislation has a direct impact on the culture, values and practice of surrogacy in a particular jurisdiction. In the UK we have much to be proud of when it comes to surrogacy. For many of us surrogacy represents the very best of values: friendship; empathy; mutual respect; trust; teamwork; and altruism. Much of this culture stems from a law that was set up with the explicit intention of preventing commercial payments and organisations. This has nurtured a specific mindset around UK surrogacy that we want to protect.

With this in mind we do NOT support the following categories of payments:

  • Compensation for the pain and inconvenience of being a surrogate:  Any actual costs that a surrogate incurs as a result of trying to conceive, being pregnant or giving birth, or from a medical procedure or complication, should be covered in their expenses.We do not believe that a payment should be made for reaching a specific stage of a surrogate pregnancy, or for the fact that a procedure or complication has taken place, as this is akin to a payment for the service of being a surrogate and does not represent the repayment of an actual expense incurred by the surrogate
  • Payment for being a surrogate: for the reasons stated above Surrogacy UK does not support this category of payment

In addition to the points above, we believe there may be some expenses that have been overlooked in the categories, for example the surrogate’s partner’s time off work. We would love to hear your views on what other expenses might not have been considered.

ENFORCEABILITY:
  • We think that in the case of a breach of the limitations on payments the arrangement should exit the new pathway and enter the PO route (where excessive payments would be dealt with in a similar way to that which currently exists)
  • We think that IPs and surrogates in the new pathway should sign a sworn statement to say that they have not paid, and do not intend to pay, more than the amount declared in their surrogacy agreement. Any breach of this would be dealt with as a contempt of court
  • We agree that a surrogate should be able to enforce the financial terms of a surrogacy agreement in line with the proposals in the consultation paper
PAYMENTS:
  • We would like to see a comparison of estimated versus actual expenses at a certain time period after the birth/end of pregnancy so that any discrepancy can be rectified by either party
  • We believe that the surrogate should keep a record of expenses incurred. Where possible receipts should be kept (for a certain period of time post the end of a pregnancy); however, receipts should not be mandated as this would be overly burdensome on the surrogate
YOUR VIEWS: This is an area where we are particularly keen to hear your views so that we can continue to evolve and reconsider our position. Join our Facebook page to join in the discussion.

Click here to download the Short Form Survey and respond to the Law Commission’s provisional proposals. Questions 28 to 40 deal with this reform area.

Back to intro page or click on the reform areas below to learn more

Reform Area 1 Creation of a new pathway that allows intended parents to be legal parents from birth
Reform Area 2 Specific requirements and safeguards that are mandated for entry into the New Pathway
Reform Area 3 A regulator for surrogacy and regulated surrogacy organisations
Reform Area 4 Double donation (no genetic link to IPs required) could be permitted under the New Pathway in domestic surrogacy
Reform Area 5 Creation of a national surrogacy register so those born through surrogacy can access information about their origins
Reform Area 6 The Law Commission asks an open question about what kinds of payments should be allowed in surrogacy arrangements
Reform Area 7 For international surrogacy arrangements the Law Commission proposes reform and guidance to make it easier to bring a surrogate child back to the UK