Harriet Mason - University of Southampton
Unveiling the Blind Spots: A Legal Critique of the Commission’s Overlooked Concerns in Surrogacy Reform
Over 30 years have elapsed since the Surrogacy Arrangements Act attempted to navigate the complex legal landscape of gestational surrogacy arrangements. However, the Act’s limitations have become increasingly apparent considering evolving societal understandings of family. In recognising this gap, the Law Commission’s 2019 Consultation Paper offers a prompt response, outlining a new framework for surrogacy arrangements and addressing the ambiguity surrounding surrogacy payments. Overall, the proposals of regulations and checks have garnered widespread support, and the Commission has been applauded for its codified approach toward reform. It is critical to acknowledge that this is a first step in addressing the broader legal and ethical complexities, such as the potential for exploitation and the impact on children born through these arrangements. This essay will delve deeper into the merits of the Law Commission’s proposals, while recognising the limitations of the consultation paper and identifying further areas demanding ongoing scrutiny.
The Law Commission’s Consultation Paper views the prospects of reform as a project and opportunity to create a better framework for surrogacy arrangements. At the centre of its reforms is the implementation of a regulatory scheme that will enable parties to enter an arrangement that is safe, clear and places emphasis on the welfare of the child. Currently, the 1985 Act does not offer a regulatory scheme for surrogacy arrangements, meaning agencies which assist surrogacy arrangements are not covered by a statutory or regulatory umbrella, and are thus not required to perform to any recognised standard of legal competence. Unlike healthcare or childcare sectors, where ethical codes safeguard vulnerable individuals, surrogacy agencies operate autonomously. The consequences of this regulatory void are manifold, inconsistent service and expertise leaves families gambling on the competence of the agencies. This substantial gap has been the subject of notable attention in case law, causing the field to be vulnerable to ethical and legal challenges, leaving families at risk of encountering unaccountable agencies lacking the necessary expertise to navigate the complexities of surrogacy arrangements. Re G (Surrogacy: Foreign Domicile) illustrates the dangers posed by agencies’ lack of essential legal knowledge. A couple had brought about an arrangement with the assistance of COTS, but when they applied for a parental order from the court it was denied due to their non-domiciled status in the UK (a fundamental requirement set out in section 54 of HFEA). Comparable concerns echo in Re X (A Child)(Surrogacy:Time Limit), where an agency’s failure to inform the commissioning parents of the applicable time limit for applying for a parental order led to significant legal complications and emotional distress. These cases underscore the potential for agencies’ ignorance to cause irreversible damage to families and revealing the vulnerabilities in their procedural awareness. Ultimately, how an organisation proceeds can affect positively or negatively the child’s welfare as well as the surrogate’s and intended parents’. Thus, implementing effective monitoring and regulations should be regarded as a fundamental change. Therefore, it is imperative to bridge this regulatory gap and illuminate the opaque corners of surrogacy with the rigorous framework of legal accountability. Enacting robust regulations, training, licensing, and regular inspections for agencies would ensure agencies possess the necessary legal knowledge, ethical grounding, and procedural expertise. In doing so there will be the assurance that the pursuit of family formation is guided by unwavering commitment to legal compliance and ethical principles.
The Law Commission proposes that the role of regulation can be found in the adoption regime. Part 2 of the Care Standards Act 2000 sets out the elements of the regulatory regime for adoption agencies who are governed by regulations and national minimum standards. The Paper proposes that ‘regulated surrogacy organisations’ will be taken on by the existing organisations and that they will be regulated by the Human Fertilisation and Embryology Authority. The Commission’s reasoning is that the Authority is already a regulatory body for several fertility treatments, they are not aware of any other body well placed to undertake the role, and they already have a guidance note devoted to surrogacy arrangements in their code of practice. Not only does the restrictive legislation (SAA 1985) not provide a regulatory scheme but it also does not facilitate professional support and arguably the law prevents this support. This is because solicitors who charge for formalising an arrangement are contravening section 2 of the SAA. Therefore, parties are left to rely on the unregulated non-profit agencies for advice, and the results of this have been illustrated in the paragraph above. Part of the new pathway is that parties will be able to access legal advice to advise on the drafting of an agreement to have the legal effect of allowing the intended parents to become the legal parents at birth. By allowing the processes of safeguards such as independent legal advice, it will promote the role of independent legal counsel throughout the surrogacy process, empowering informed decision-making and safeguarding the rights of all parties, thereby minimising the potential for emotional turmoil. On the other hand, Sarah Jones (Chair of trustees at Surrogacy UK) does question whether a solicitor would be the right person to deal with the emotional issues involved as the focus on legal aspects could divert attention from emotional well-being so it is harder to effectively address the emotional challenges that may arise. Consequently, there should be multidisciplinary teams who prioritise child-centred frameworks to address both the legal and emotional needs of the parties involved in surrogacy arrangements and safeguard the child’s welfare throughout the process.
Overall, the Law Commission attempted to cultivate fresh legal frameworks, policies, and regulations to meet societies rapid and substantial changes to our family building choices. However, agreeing with Louisa Ghevaert, the Paper makes a small impression into a ‘bigger set of fertility and family building issues and problems which urgently require law and policy reform’. The Object campaign in their review of the Law Commission’s proposals, was extremely critical in that the Commission did not properly address the lack of evidence on surrogacy outcomes, the harm done to women and the ways in which regulation is impractical. Consequently, this raised concerns as to how effective the Commission’s proposals would be in practice when they have not considered the experiences of the women and of paramount concern is the lack of consideration of the outcome of such arrangements. This discrepancy casts a significant shadow over the paper’s commitment to child-centredness, the proposed framework must undergo robust amendments to ensure that the vulnerable interests of children are not passively acknowledged, but actively prioritised and protected through enforceable measures.
A fundamental principle of the current legislation is its ability to prohibit commercial surrogacy. SAA 1985 makes it a criminal offence for a person to negotiate agreements on a commercial basis. However, one of the conditions outlined in section 54 of the HFEA regarding granting a parental order is that ‘the court must be satisfied that no money or other benefit (other than for expenses reasonably incurred) has been given or received.’ Ambiguity as to what is included within expenses as well as the transparency over what the payments are being made for has plagued the case law. Re A, B and C (UK surrogacy expenses illustrates this ambiguity as it raised the question of whether two surrogates who received payments for a recuperative holiday was an expense reasonably incurred. Justice Russell responded to this question with a similar level of ambiguity stating, “it is entirely reasonable for any surrogate to receive payment for expenses incurred as a result from the need for physical and emotional recuperation from pregnancy and birth.” So, although there is a statutory restriction on payments being kept to expenses only, some cases do highlight that part of what is paid to the surrogate is a reflection for the services rendered rather than a recompense. This incongruence presents a two-pronged problem. Firstly, it undermines the rule of law, creating a confusing legal landscape where legislative intent is rendered toothless. This erosion of legal certainty is alarming, jeopardizing public trust. However, the deeper concern lies in the potential consequences of commercial surrogacy itself. The ethical concerns surrounding the commodification of a woman’s body cannot be ignored. While ensuring a robust legal framework is crucial, addressing the issues associated with commercial surrogacy remains the goal. Until both elements are tackled, the shadow of illegality and ethical concerns will continue to loom over surrogacy arrangements. However, implementing restrictions on these payments is challenging when the issue only arises after birth by the court. Therefore, proving illegality becomes a tightrope walk and the emotional and practical turmoil for all parties loom large if settled arrangements are disrupted. The ethical stakes necessitate a framework built on prevention, not post-birth precarity, embracing proactive measures like clear legal definitions and robust oversight. It must be noted that the Commission has not proposed a specific proposal but has instead presented a few options which it then asks for consultees’ views. To tackle the lack of transparency the Law Commission proposes there should be three categories for costs: essential, additional and costs associated. The essential costs are designed to capture the costs which are unavoidably incurred, such as maternity clothes and additional expenditure on food. Additional costs arise due to the pregnancy but are not essential, such as the cost of providing childcare while attending appointments. Lastly, costs associated occur due to the arrangement such as, meeting up to get to know each other and the cost of counselling and legal advice. Enforcement of these payments would be separate from the issue of legal parenthood, as its attribution would continue to be decided by the law. Nevertheless, the main difficulties in making payments more transparent and the law clearer in its meaning of ‘reasonable expenses’ is that in practice the courts allow payments much higher than ‘reasonably’ expected as illustrated in the cases of Re A, B and C (UK surrogacy expenses). This is hard to amend because by punishing surrogacy commissioners who break the law regarding payments by imposing a criminal sanction or by refusing parental responsibility punishes the child. Consequently, payments can never be properly regulated, especially as the Commission has clearly not remedied the problems with the current system. It also proposes that it could be possible that commissioning parents could pay for the service which is set by the regulator in the new pathway. The Law Commission believes the payment of service should be linked to gestational services to avoid the agreement being considered to constitute the sale of the baby. This, however, contradicts the foundation of every arrangement being the transfer of the child. Critics still believe that the issue on payments still requires a huge amount of clarity. Dr Sharon Zahra (lead at the Scottish National Blood Transfusion Service) expresses concerns that payments over and above reasonable expenses could increase the risks to the welfare of both the surrogate and the child by creating a demand for surrogates and a financial incentive, rather than ethical considerations and potentially risking the health and well-being of those involved. Hence, having defined categories for expenses and clear regulations regarding payments would address the current ambiguity surrounding surrogacy costs. Ultimately, this would promote transparency between parties, reducing legal uncertainty.
Furthermore, on first glance the Paper’s response to the issue of payments does not illustrate that the child’s needs come first compared to the adults involved. In any decision the rights of the child are paramount, the UN Convention on Rights is certain on the view that to avoid the sale of a child, the gestational mothers should have parental responsibility at birth. Despite the Commission stating that surrogacy commissioners should have parental responsibility at birth they also state that this is unless the gestational mother objects within a brief time limit after the birth. By requiring women who have recently given birth to object or lose parental responsibility in a brief period does not put women and children’s needs first nor does it conform to the principle that the decision to relinquish a child ‘must be a gratuitous act, based on a woman’s post-birth intentions’. Therefore, the UN Convention states that the proposals on payments facilitate the sale of children. The Commission’s proposed deadline for gestational mothers to object to parental responsibility falls short of legal and ethical obligations. The needs of women and children must be prioritised by aligning legal frameworks with international principles and ensuring all decisions regarding relinquishment are truly voluntary and grounded in post-birth intentions, not financial pressures, and tight deadlines.
The Law Commission presents positive changes regarding the regulation and monitoring of surrogacy arrangements which would help to reduce the risk of these arrangements breaking down. However, the issue of payments to surrogates has not been properly addressed with a proposed course of action and still lack clarity. It is apparent that the Commission has not effectively considered the child’s needs equally to the surrogates or the commissioning parents. Nor were the ethical issues relating to the possible exploitation of women successfully addressed. Ultimately, the Law Commission presents propositions which do not tackle all the wider issues which surrogacy still faces today.
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Bibliography
Care Standards Act 2000, pt 2
Catherine Hill, ‘Do the Law Commissions’ proposals for surrogacy reform have the child’s welfare at heart?’ (PET, 30 September 2019) accessed 20 December 2023
Human Fertilisation and Embryology Act 2008, s 54
Law Commission, Building Families through Surrogacy: A New Law (Law Com No 244, 2019)
‘Sneaking Surrogacy into Law’ (Object Now, 10 February 2021) accessed 8 January 2023
‘Sneaking Surrogacy into Law’ (Object Now, 10 February 2021) accessed 8 January 2023
Louisa, ‘Law Commission: Reforming Surrogacy Law’ (Louisa Ghevaert Associates, 15 August 2019) accessed 25 December 2023.
Re A, B and C (UK Surrogacy expenses) [2016] EWFC 33
Re G (Surrogacy: Foreign Domicile) [2007] EWHC 2814 (Fam)
Re X (A Child)(Surrogacy: Time Limit) [2014] EWHC 3135 (Fam)
‘Sneaking Surrogacy into Law’ (Object Now, 10 February 2021 accessed 20 December 2023
Surrogacy Arrangements Act 1985
