Position Statement on the Law Commissions’ “Building Families Through Surrogacy: A New Law”

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Summary

  1. Surrogacy UK has been actively campaigning for new surrogacy laws for over eight years, since 2014 when we started a letter-writing campaign to the Department of Health and set up the SUK Working Group (SUKWG) on Legal Reform (which pulled together academics, lawyers, and people with experience of surrogacy in order to research and make recommendations on legal reform. The SUKWG is also the secretariat for the All-Party Parliamentary Group on Surrogacy chaired by Andew Percy MP). The research and campaigning that we have done has helped to bring about the Law Commissions’ surrogacy project. It was one of the promises made to the Working Group when we visited the then-Minister, Nicola Blackwood, in 2016.
  2. We are delighted to see that the majority of the changes that we have campaigned for have been included in the Commissions’ report and recommendations [as detailed in Appendix A].
  3. The recommendations retain the UK’s distinct and progressive approach to altruistic surrogacy, strengthen measures that avoid the commercialisation of surrogacy in the UK, provide greater clarity to all parties in surrogacy arrangements and – most importantly – help to provide a secure start to children born through surrogacy, and a clear route through which they can obtain information about their origins.

We welcome…

  1. In particular, we are pleased to see:
    1. A new pathway for surrogacy that will allow intended parents to become the legal parents of children born through surrogacy from birth: this is in the best interests of all parties including, most importantly, children born through surrogacy.
    2. Maintenance of the fundamental principle that surrogates retain body autonomy throughout pregnancy and childbirth. SurrogacyUK believes that altruistic surrogacy is a source of empowerment when conducted in a way that protects surrogates’ autonomy.
    3. Greater clarity on what types of costs can be reimbursed to a surrogate as well as clear guidance on what types of payments are not permitted.
    4. The proposal that surrogacy not-for-profit organisations become ‘Regulated Surrogacy Organisations’ (RSOs) overseen by the Human Fertilisation and Embryology Authority (HFEA). This new status will help to safeguard surrogacy arrangements in the UK and help to ensure that the highest standards of support and guidance are provided.
    5. The proposal for a new Surrogacy Register, maintained by the HFEA which records information for all surrogacy agreements in the new pathway and where a parental order is obtained. At SurrogacyUK we strongly believe that surrogate-born people should be able to access information about their origins and that this is in the best interests of children born through surrogacy.
    6. The improvement of employment rights for intended parents through surrogacy, including access to a benefit equivalent to Maternity Allowance, time off work to attend appointments and more appropriately timed access to statutory leave.
    7. Removal of the existing requirement through which surrogates’ partners are a) named on the birth certificate of children born through surrogacy in the existing pathway and b) required to consent to granting of a parental order. This removes an anachronistic and patriarchal aspect of surrogacy law that has been unpopular with surrogates, their partners and intended parents and has not been in the interests of children born through surrogacy.
    8. A route through which a parental order can be granted without a surrogate’s consent where it is in the best interests of the child born through surrogacy. This will help to protect children’s rights and interests in the rare cases where the granting of a parental order is disputed.

We will keep campaigning for…

  1. Whilst we are very pleased to see the Law Commissions’ proposals, there are some elements that we will continue to campaign for including:
    1. Double gamete donation, through which intended parents who are unable to provide their own gametes can become parents through surrogacy. This route to parenthood is currently available to intended parents though IVF (in which one parent is able to carry a child but not to provide gametes) but is not accessible for those who require a surrogate. This is unfair and unequal and will continue to campaign for reform.
    2. As detailed in Appendix A, we will also continue to campaign for equality in access to fertility treatment on the NHS and for the inclusion of surrogacy in schools’ Sex and Relationships Education.

Quotes

  1. Sarah Jones, a five-times surrogate and SurrogacyUK’s Head of Surrogacy said: “I’m really pleased to see the Law Commissions’ recommendations: they retain and strengthen the UK’s altruistic approach to surrogacy – something that I and all of our surrogates are passionate about – and also improve the security and confidence that all parties involved in surrogacy journeys can have. It’s really important that intended parents through surrogacy have a pathway that will allow them to become legal parents from birth, and removes parental responsibility in those cases from surrogates (and, where they’re married or in a civil partnership, their partners). We will keep pushing for equality around access to fertility treatment which the recommendations don’t cover, but we are happy that the proposals go a very long way to improving surrogacy in the UK.”
  2. Natalie Smith, a parent through surrogacy and Chair of SurrogacyUK’s Legal Reform Working Group said: “I am delighted to see the recommendations from the Law Commissions which provide a long overdue, well considered, and comprehensive review of the UK’s outdated surrogacy laws. The recommendations will significantly improve the experience of those creating families through surrogacy and better balance the rights of surrogates, intended parents and children born through surrogacy. We hope the Government will take these recommendations forward quickly, before the next general election. It is imperative that these recommendations become reality as soon as possible.”

Appendix A: SurrogacyUK Recommendations & Results

This analysis is based on the “Summary of Report” published by the Law Commissions. At the time of writing we have not seen the full report from the Law Commissions.

SurrogacyUK Recommendation Result (based on the Summary of the Report only)
1. The law should maintain the underlying principle that surrogacy is provided on an altruistic basis and that no person or surrogacy organisation should profit from it. The Report strengthens the altruistic principles that underlie the UK’s approach to surrogacy. We are fully in favour of the Commissions’ recommendations.
2. Intended parents should be recognised at birth as the legal parents and be able to register the birth. The new pathway provides a clear route through which intended parents can have legal recognition as parents from birth. This is in the interests of all parties including, importantly, children born through surrogacy. We are fully in favour of the Commissions’ recommendations.
3. Parental orders should be available to IPs where neither parent has used their own gametes (‘double donation’). The Report recommends that the ‘genetic link’ to one of the intended parents remains. SurrogacyUK is in favour of double gamete donation in certain circumstances and will continue to campaign for reform on this issue.
4. IPs should not be evaluated for their suitability of becoming parents in an adoption-like framework (instead using the same frameworks as those becoming parents through IVF or natural conception).

We are pleased with the proposed regulatory framework that the Report recommends and the proposal that the ‘welfare of the child’ assessments are undertaken by the RSO.

We will need to see the detail of what these checks entail to ensure that they do not discriminate unfairly on parents through surrogacy in comparison to those using other forms of assisted reproduction.
5. There should be a better definition of what constitutes a ‘reasonable surrogacy expense’, recognising that the types/amounts of expenses will vary according to individual circumstances.

The Report provides clear and useful clarification around the scope of ‘reasonable expenses’ that may be paid within surrogacy arrangements. Crucially it also outlines payment types that will not be permitted and the consequences of doing so.

We will be keen to work with the HFEA in developing the Code of Practice for surrogacy and addressing some practical issues arising from the proposals.

We are fully in favour of the Commissions’ recommendations.
6. A way of recognising parenthood acquired overseas (e.g. if that occurred within a country on a defined list, or similar) should be built into the law.

We welcome the reports recommendation that government provide a “single, comprehensive guide for intended parents explaining the nationality and immigration consequences of having a child through an international surrogacy arrangement” whilst retaining the protections of the Parental Order process.

Subject to seeing the detail, we are fully in favour of the Commissions’ recommendations.
7. Public funding should be made available for surrogacy-related fertility treatment in the UK in line with other fertility treatments. Whilst outside the scope of the Law Commissions’ project, we will continue to campaign for equality of access to fertility treatment for those pursuing parenthood through surrogacy.
8. Surrogacy expenses should not be treated as income by the Department of Work and Pensions, nor should the recovery of expenses impact any other income-related entitlements. We await further details within the full Report and draft bill before making an assessment of the proposals on this point.
9. There should be better collection of data relating to surrogacy arrangements and the HFEA should provide a full set of surrogacy-specific forms for clinics to use. We will be keen to work with the HFEA in developing the Code of Practice for surrogacy and associated elements relating to data protection, surrogacy-specific forms and the creation of a surrogacy register.
10. Surrogacy should be included in schools’ sex and relationships education (SRE). Whilst outside the scope of the Law Commissions’ project, we will continue to campaign for the inclusion of surrogacy in SRE curricula.