Vardags Family Law Essay competition 2023/24 | Florence Cole

Florence Cole - University of Southampton

Building Families Through Surrogacy: Would the Law Commission’s reform proposals address the problems with the current law of surrogacy?

Over the last decade, the law regulating surrogacy has gained a reputation for being outdated and unenforceable at the hands of volumes of case law and academic discourse. In 2019, a report was published by the Law Commission, ‘Building Families Through Surrogacy: A New Law’, which details the much-needed plans for reform.

Throughout this essay, the problematic nature of the current law will be highlighted through a detailed analysis of the reform proposals. The specific issues of commercial surrogacy and payment will be considered positive, whilst acknowledging the reforms will cast consequential difficulties for international surrogacies. Further complexities will be discussed, concluding that while the reforms generally address the main issues, specific details are problematic.

The General Issue

Section 1 of the Surrogacy Arrangements Act 1985 (SAA 1985) defines surrogacy; a surrogate mother is a woman who carries a child in pursuance of an arrangement to hand over the child, and for parental responsibility to be met by another person(s). Additionally, Section 33(1) Human Fertilisation and Embryology Act 2008 (HFEA 2008), states that the woman who has carried the child because of artificial insemination will be treated as the mother. Accordingly, commissioning parents must apply for a Parental Order, to transfer legal parentage under Section 54 (and s 54A) of the HFEA 2008.

The requirement to obtain a Parental Order from the court to transfer legal parentage to the commissioning parents from the surrogate casts the most issues, this is because certain conditions must be met under Section 54 HFEA 2008 for a successful grant of parentage.

As mentioned, surrogacy law has been criticized as being outdated, and non-reflective of current society. This can be demonstrated by the SAA 1985 being created over 30 years ago, and it can be said that society and social norms have since developed. An example of this is the increased use of assisted reproductive methods, such as IVF over the last 30 years.

Although the usage of these methods has increased, the overall conditions to obtain a parental order following surrogacy have remained the same. Some efforts have been made to align the law with society, such as the introduction of s 54A for single applicants, however, this was a recent addition and does not reflect the wider case for reform necessary.

The case of Re X and Y (Foreign Surrogacy) demonstrates the contemporary issues with the law. Hedley J stated that due to the welfare paramountcy of the child, the law is practically unenforceable. The welfare paramountcy principle in the Adoption and Children Act 2002 requires that when making any decision as to the welfare of the child, the child’s best interests must go to the core of the decision. Although a necessary provision which ensures all decisions in court consider the best interests of the child, a consequence has been that the law is stretched much further than the words in provisions. This does not bode well for legal certainty.

A further implication that follows from the discretionary nature of the law of surrogacy is that if the law is always up to judicial interpretation, based on the welfare interests of the child, this is a clear infringement on the legislative supremacy of Parliament.

Considering this, the Law Commission seeks to reform some of the most problematic areas, that are faced with the most judicial discretion, to facilitate a more accessible pathway to parentage, that is not burdened by so much uncertainty.

Following this discussion of the general issue with the current law, specific reforms will be addressed.

The New Pathway

Currently, a parental order is applied for six weeks after the birth of the child, and the application to the court should be made before they are six months old. This provision means that all legal process is completed post-birth, which leads to an onerous and time- consuming journey when the new family may wish to spend precious time together.

The Law Commission’s proposal would introduce a new pathway for domestic surrogacies, with non-profit organisations guiding the process before birth, in the hope an agreement transferring legal parentage will be completed in time for the arrival of the baby. The pre- birth agreement shows a change from a burdensome current system and would lead to the intended parents feeling more secure at the birth of the child, knowing they have legal parentage.

A parental order will be utilised if the organisation has not guided the process, such as an international surrogacy. The shift would hopefully mark a change from a process guided by judicial decision-making to an administrative process guided by knowledgeable organisations.

Dr Kirsty Horsey, a leading family law academic, undertook a survey that assessed the views and feelings of current and previous surrogates on the new pathway. Out of 47 responses to a question on whether they agreed with the new process, only two stated they did not. This was due to the new process creating an unnecessarily lengthy process. Although it is persuasive to see a large amount of the group feel positive about the proposed reform, the survey cannot be said to represent the overall feelings of surrogates within our jurisdiction, as it only represents such a small proportion.

Conversely, Brilliant Beginnings a UK surrogacy agency, proposes that this pathway does not address the bigger picture, which is the chronic shortage of surrogates in the UK drives commissioning parents abroad.

If this comment is taken alongside the surrogates who believe the new pathway creates a lengthy process, the evidence suggests those who are involved in the surrogacy process, believe the proposals make the process more difficult. The most persuasive evidence includes the consensus of those who are part of the procedure, and therefore, it does not seem convincing the new pathway reforms the issues here adequately. Despite this, as the survey does not consider the wider perspective of the surrogacy community, this conclusion must be approached with caution.

However, looking practically at the new pathway, the addition of extra organisations, as well as a written agreement may ensure that there are no administrative issues, and legal parentage is attained smoothly. Furthermore, having someone to guide the commissioning parents through the process would help encourage those to utilise domestic surrogacy processes, and alleviate anxieties.

On the other hand, it may add extra work for both parties in preparation for the birth. Although this criticism is maintained amongst some of the surrogates surveyed, the purpose of the reform is to facilitate surrogacy arrangements and ensure attainment of legal parentage is straightforward at birth. Based on this argument, this pathway would resolve the administrative issues of domestic surrogacy.

The Payment Issue

Section 2 of the SAA 1985 places a ban on commercial surrogacy, following the recommendation of the Warnock Committee, which was instructed to investigate the ethical consequences of human-assisted reproduction. This is reflected through Section 54(8) of the HFEA 2008 which states that no payment other than ‘expenses reasonably incurred’ are permitted. The prohibition of commercial surrogacy and unreasonable payment is an effort to retain the altruistic and welfare-focused nature that the ideal surrogacy should have. Despite this, it is very evident the law in this area does not function clearly and understandably.

The Brazier Review in 1998 of commercial surrogacy concluded that the prohibition is easy to escape, many use unprovable payment methods, and the highly restrictive nature of the types of payments allowed only persuades those to seek better experiences of surrogacy abroad¹⁸.

Again, the case of Re X and Y (Foreign Surrogacy) presents a clear example of the moral dilemma within the payment criteria. Hedley J authorised payments to a Ukrainian surrogate which had been monthly, and ultimately used for a flat deposit, although commented he was ‘most uncomfortable’ in doing so. Further cases, such as Re L (a minor) affirm that the courts will rarely be prevented from making a parental order, due to the paramountcy principle. Although the reasoning in these cases negates the clear intention of a ban on commercial surrogacy, it is evidently difficult for the courts to draw the line between what is a clear breach of policy and the allowance of a parental order to maintain the welfare interests of the child. These cases are evidence for the notion that the balancing act of welfare needs and statutory conditions places too much pressure on the judiciary in the exercise of discretion, and therefore reform was needed. Due to powerful legal devices such as the paramountcy principle, it is nonsensical to have statutory requirements that cannot be adhered to in practice.

The Law Commission propose that a new system will make categories of permitted payments, for those involved in a surrogacy arrangement to have certainty as to what the reasonable payment concerns. Compensation for carrying the child and household costs is prohibited. Furthermore, as the new reform does not make any provision for international arrangements, it is hoped that the new payment provisions indirectly solve the issues of international commercial arrangements.

Legal academic, Alan Brown, has argued that the reforms do not meet the difficulties within the current law: uncertainty, and unenforceability. Firstly, the Commission does not seek to use any enforceability mechanisms, even in international parental order cases. This proposal does not serve as a persuasive way of addressing payment issues, as if that path is required, the courts will still need to exercise their discretion through the paramountcy principle. The court would need to weigh up whether the payments made are sufficiently unreasonable to find that a parental order would not be in the best interests of the child. In reality, this would rarely be the case, as demonstrated by the current law.

For domestic cases, the Commission reached its payment categories amidst striking differences amongst stakeholders and used a ‘consensus-seeking approach’. This means that we remain in a blanket of uncertainty; a judicial balancing act is still required, as there is no cap on payment amount if used for the correct purpose within the category, but one must decide what the correct purpose is.

The overriding feeling is that the new list of permitted payments is overly complex and that they over-protect surrogates from trafficking, to deter those who simply wish to have an incentive for their generosity. Although these views are persuasive, this conclusion would be more convincing if there was an attempt made to applaud the Law Commission for making a large step forward in the clarity of the law. The purpose of surrogacy is not to reward people for being generous, it is to help facilitate the creation of a family.

Therefore, although the categories in principle may seem complex, in practice, the new non- profit organisations would be able to make much better judgments, considering individual circumstances, in determining whether a payment goes beyond public policy. This would be completed by reference to the proposed categories. Due to this, the surface issues in terms of domestic payment issues would be resolved.

Further issues arise specifically relating to international agreements.

International Surrogacy Reform?

As made clear by the discussion of the new pathway and payment, there are further issues relating to international surrogacy.

Brilliant Beginnings states that two-thirds of people who use their charity go overseas for their arrangements. Thus, it does seem foolish that through the proposed reform, the only address is through a hope that the issues would be indirectly resolved. Furthermore, the Commission explicitly excluded international arrangements from the new pathway and suggested that these cases must still apply to the court for a parental order, giving onus the Government to reform visa and nationality rules. The Commission has seemingly assumed that international arrangements are invariable commercial agreements, and the solution is to find a domestic surrogate. However, if there are worries that domestic surrogates are deterred due to the extensive administrative process of the new pathway, the number of non-domestic agreements will rise, as they are readily available abroad. Because of this, situations like Re X and Y would continue to occur, in potentially growing numbers, due to the paramountcy principle.

In this regard, the proposals would not reform the current issue.

Genetic Link Requirement

S.54 HFEA 2008 requires that the gametes of at least one of the intended parents be used in the embryo, and for S.54A, the single person must use their gametes.

Lydia Bracken has commented the law has a ‘fixation’ with the requirement for a genetic link in surrogacy. It can be said to discriminate against those who are infertile, but is also useless under the current law, as even with a genetic link, the surrogate is the legal mother upon birth.

The Law Commission has maintained this requirement under their proposals within the new pathway. There was a clear divide amongst stakeholders, with many against the genetic link claiming that genetics is not a matter that determines good parenting. Those in favour commented that surrogacy is separated from adoption by the requirement. The argument for separating surrogacy from adoption through genetic links can be viewed as a superficial way of discriminating against those who are not able to have a child, for any reason. This is further expanded by the Commission’s contradiction that surrogacy is founded through a shared intention to raise the child as their own. If intention goes to the centre of a surrogacy arrangement, then genetics should not play a part in the determination of legal parenthood³². Maintaining this requirement does not properly help to resolve the issues of those who struggle with fertility and wish to follow the process of a pregnancy like their own through a surrogacy arrangement. However, as this is not a key contentious issue within the current law, the reform proposal would likely not make much difference to the current system.

Time Limit Requirement

The courts have regularly allowed parental orders post the 6-month time limit, even in instances where the child is now an adult. Although the Law Commission has addressed the post-birth application issue, in instances of international surrogacy, where a parental order is still required, the 6-month time limit within S.54(3) HFEA 2008 has been maintained.

Furthermore, the Law Commission insists the court should be allowed to utilise its discretion whenever seems necessary.

With the requirement for a genetic link, the courts’ continuing to use their discretion, and a non-enforceable time limit, it seems that nothing has changed for the traditional parental order route. As made clear earlier, there may be a continuation in the rise of those who seek arrangements abroad, if the consequence of the reform, if enacted, is that domestic surrogates are deterred. A flood of international surrogacies will require the court to continue acting exactly how they are currently; therefore, the issue of the unenforceability of the time limit would remain unresolved. If regularly granting orders post time limit, there is no need to have any sort of condition in this area.

Conclusion

This discussion has addressed how the surface issues for domestic surrogacies would most likely be resolved by the proposals. However, diving further into the details produces unwelcome consequences that may incite the continuation of expansive judicial discretion. It is worrying to neglect international issues, as we cannot close our eyes to reality. Therefore, the Law Commission’s proposals would not adequately resolve the issues with the current law.

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Table of Cases

Re L (a minor) [2010] EWHC 3146 (Fam)

Re X and Y (Foreign Surrogacy) [2009] 1 FLR 733

X v Z [2022] EWFC 26

Table of Legislation

Adoption and Children Act 2002

Human Fertilisation and Embryology Act 2008 Surrogacy Arrangements Act 1985

Bibliography

Journals

Brown A, ‘Surrogacy law reform in the UK: the ambiguous position of payments to the surrogate’ (2021) CLFQ 95

Fenton-Glynn Cand M. Scherpe J ‘Is the law governing surrogacy keeping pace with social change’ (Cambridge Family Law, 2016)

Bracken L, ‘Surrogacy and the genetic link’ [2020] CFLQ 303

Horsey K and others, ‘UK surrogates’ characteristics, experiences, and views on surrogacy law reform’ (2022) Int J Law Policy Family

Welstead M, ‘A New Pathway to Domestic Surrogacy (Building Families Through

Surrogacy: A New Law: The Law Commission’s Joint Consultation Paper)’ [2019] Fam Law 1031