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Vardags Family Law Essay competition 2023/24 | 2nd Place

The Need to Modernise and Reform Surrogacy Laws in England and Wales: Navigating the Path to Comprehensive Amendment

Author: Natasha Owusu – University of Leicester

In recent years, Wales and England have seen a dramatic change in the perception and acceptability of surrogacy. A surrogate is a woman who carries and gives birth to a child on behalf of another person or couple. Even while its still not very widespread, same-sex couples, infertile couples, and other people are finding that surrogacy is a popular option for starting families. Nonetheless, there is still ambiguity in English law when it comes to intended parents rights and surrogacy. Surrogacy laws have failed to keep pace with the normalisation and expansion of this family production procedure. It is now necessary to enact comprehensive surrogacy policy reform in order to make clear the rights of all parties involved and guarantee fair treatment for the contemporary families that these arrangements generate. Both intended parents and surrogate moms have difficulties due to the convoluted and antiquated legal structure that currently governs surrogacy agreements. In order to resolve legal difficulties, safeguard the rights of all parties involved, and keep up with the rapidly changing field of assisted reproductive technologies, this essay examines the necessity of thorough change in surrogacy legislation.

The Rise of Surrogacy in England and Wales

Although surrogacy has been practiced for thousands of years, British couples have been using it more frequently since the 1980s. This is consistent with improvements in reproductive technology, such as IVF, which have increased the viability of surrogacy agreements. For couples facing infertility or high pregnancy risks, surrogacy has grown in popularity and acceptance as a means of achieving genetically related children. More recently, same-sex couples—especially homosexual male couples—have become more and more in demand of surrogates as they look to expand their family.

Since there are no official registers, exact numbers are hard to come by, although estimates put the number of surrogacy births in Britain at several hundred each year. To put things in perspective, this amounts to little over 1% of all live births in Britain. Because international arrangements are more accessible than domestic ones, about two thirds of British intended parents who use surrogacy choose to make arrangements abroad. Given the evolution of social views towards non-traditional paths to motherhood, this need is likely to continue expanding. But the surrogacy industrys growth will worsen current policy issues unless there is equivalent legislative reform.

Limitations of Current Surrogacy Law

The Human Fertilisation and Embryology Act of 2008 and the Surrogacy Arrangements Act of 1985 now regulate surrogacy. Drafted more than thirty years ago, this law ignores modern concerns including international surrogacy, parental rights, and the various family structures that result from surrogacy partnerships. Though there is still little regulation, charitable arrangements are allowed but commercial surrogacy services are not. The fact that parental rights are not legally recognised from the moment of birth is a major obstacle, particularly for intended parents who are not the childs genetic relatives. Research conducted by the Law Commission of England & Wales found that families may find themselves in a state of uncertainty due to the lengthy and unpredictable legal process involved in transferring parental rights. Moreover, the global aspect of surrogacy presents challenges related to immigration and citizenship, underscoring the necessity for a stronger legislative framework. Regardless of genetic ties, the woman giving birth is acknowledged as the legal mother for legal purposes. In order to obtain rights, intended parents must petition for a Parental Order, which they can only do following the childs birth.

This antiquated legal structure has many issues. Because surrogate moms are unable to give up their rights prior to the birth of the child, intended parents must go through drawn-out post-birth adoption procedures. The highly charged emotional experience of giving birth, along with residual legal rights, frequently makes surrogate separation more difficult. Intended parents who do not receive initial legal recognition must deal with custody issues and the loss of vital bonding time with their newborns. Legal obstacles stand in the way of same-sex male partners being recognised as parents. Furthermore, because cross-border rules are varied, international surrogacy arrangements—which make up the bulk of cases for intended parents in the United Kingdom—create significant issues.

Analysing surrogacy laws in other jurisdictions—especially those that have recently experienced reforms—can yield insightful information. A World Health Organisation comparative review indicates that certain U.S. states and Canada have taken more progressive stances, highlighting the significance of pre-birth orders, unambiguous contractual agreements, and expedited legal procedures for identifying intended parents.

These facts show how urgently English law governing domestic altruistic surrogacy needs to be changed. For those whose livelihoods depend on surrogacy, updated legislation should establish more egalitarian and transparent routes to parenthood. It is imperative to eliminate the existing obstacles and discrepancies that penalise surrogate parents and children.

Protecting the Interests of Surrogate Mothers

The rights and wellbeing of surrogate mothers must also be protected, even if intended parents rights are frequently the centre of attention. Specific requirements should be implemented into effect to guarantee that surrogates provide their informed permission, get fair pay, and have access to psychological support throughout the procedure, according to a report by the Centre for Social Justice. The interests of all parties concerned should come first in a fair and impartial legal response.
In any reformed system, protecting the fundamental rights and interests of surrogate mothers must be a top concern. Mandatory independent legal representation for surrogate mothers, distinct from intended parents, is needed to ensure surrogates understand their rights and obligations. A crucial safety measure would be to mandate that surrogates have access to independent solicitors who may counsel them on the arrangement, go over the opportunities and risks, and exclusively represent their interests. Rather than depending on agencies or intended parents for legal advice, surrogates should have access to independent legal counsel whose only goal is to safeguard their welfare throughout the whole process. Ensuring really free and informed consent would be facilitated by granting surrogates the right to independent legal representation. Any improvements must keep this dedication to surrogate mother protection at its core.

Potential Solutions for Reform

Englands surrogacy regulations could be improved by a number of strategies. Permitting and regulating commercial domestic surrogacy is one suggested reform. This would improve everyones protection, counselling, and screening processes. It could alleviate international agreements that carry a significant amount of legal uncertainty. It might also be morally acceptable to pay surrogates for bearing their physical burdens. Commercialization, however, runs the risk of commodifying reproduction and encouraging the exploitation of women who are weak economically. It is best to look at alternatives first.

Adopting a human rights-based paradigm of controlled altruistic surrogacy would be a better course of action. This could allow surrogates to give up their rights prior to delivery while enforcing counselling and putting strict qualifying standards in place. Pre-birth recognition would be granted to intended parents, enabling them to immediately assume full rights and responsibilities after birth. By presenting it in this way, surrogacy would be supported as a compassionate act that protects the childs best interests. Public approval of this family-building strategy could be increased by educational initiatives.

To make it possible to accumulate important information for policymaking, a national registry of surrogacy births and parental orders should be established. Effective research and regulation are now hampered by the lack of systematic record-keeping surrounding surrogacy arrangements. Legislators would have greater information if a private statutory registry tracking surrogacy numbers, success rates, granted parental orders, and other indicators were put in place. Stronger ethical oversight would also be made possible by data on the health consequences of surrogate moms and the offspring born through surrogacy. Although privacy is a problem, thoughtful design could strike a balance between the need for secrecy and transparency. All things considered, better data gathering via a national register would be a positive step in controlling the surrogacy industrys expansion and developing data-driven changes.

Additionally, same-sex male couples interested in surrogacy need better legal pathways. Joint parenting would be established right away if joint Parental Orders were permitted instead of adoption procedures being necessary. Parenthood rights would be strengthened by allowing embryos to be created with the genetic material of both males. Regardless of their marital status, same-sex couples should be allowed to access surrogacy together according to updated relationship recognition legislation.
Rather to outright prohibitions, authorised routes might be established for international commercial surrogacy, granting parenting rights to foreign arrangements that adhere to certain ethical criteria. Negotiating international accords regarding surrogacy could offer more uniformity across borders in addition to changes made to domestic law.

A Rights-Based Approach to Reform

The framework offered by a rights-based viewpoint is beneficial in helping to change surrogacy laws. All parties involved—the intended parents, the surrogate mother, and any offspring—have their human rights recognised by this method. Thoughtful regulation can fairly balance their competing rights and interests. The rights of surrogate mothers include the following: fair compensation, non-exploitation, informed consent, and health. Intended parents have the right to raise children they believe are their own, find a family, and be treated equally regardless of their sexual orientation or marital status. Surrogate children are entitled to identification, family life, stability, inheritance, and independence from birth circumstances discrimination.

By requiring thorough counselling and screening of surrogate mothers before to joining arrangements, new legislation should protect these diverse rights. Throughout the procedure, care and monitoring for their health and welfare should be provided. It is important to make sure that costs, time, and health risks are fairly compensated. Clear and unambiguous legal procedures that eliminate present uncertainty and delays are necessary for intended parents to become parents. Relationships between parents and children should be established from the start rather than being contested later. Furthermore, childrens rights to inheritance, familial ties, and identity should never be violated by surrogacy.

A thorough overhaul of surrogacy legislation ought to cover a number of important topics, including putting in place a system of pre-birth legal parentage orders can hasten the transfer of parental rights while offering everyone concerned security and certainty. A study that was published in the Journal of Family Law suggests that guidelines for international surrogacy agreements, such as the acceptance of foreign birth certificates and expedited citizenship procedures, can lessen the difficulties involved in cross-border surrogacy. Fair and open remuneration plans along with well-defined surrogate mother rights and obligations can help create a more moral and just surrogacy environment. Lastly, putting in place educational programmes for the general public and legal experts can raise awareness of surrogacy-related concerns, lessen stigma, and foster a better comprehension of the intricate legal issues involved. Pregnancy laws, international agreements, surrogates rights, and education reforms will all be addressed, resulting in a surrogacy framework built on justice, ethics, and informed decision-making.

The guiding principles for updating surrogacy laws in a way that balances intricate multilateral interests are provided by this rights-based approach. Regulations that prioritise the childs welfare ought to be designed to support moral surrogacy agreements while guarding against exploitation.

In conclusion, the current state of surrogacy laws in England and Wales necessitates a modern legal framework that keeps up with changing societal norms and technological advancements. This is because the laws have not been able to keep up with the growing popularity of surrogacy and its changing norms. For intended parents, surrogate mothers, and the children born via such partnerships, outdated regulations provide challenges. In order to guarantee that surrogacy laws are implemented as ethically and responsibly as feasible, in addition to helping to protect human rights, relationship equality, and surrogacy regulation, comprehensive legal reforms are now necessary.
Comprehensive reform can improve the security, morality, and equity of the surrogacy process for all parties involved by resolving the uncertainties and difficulties present in the current framework. Surrogacy policy may be modernised by eliminating discriminatory practices against same-sex couples, enabling altruistic pre-birth directives, and enhancing international handling. By doing this, the increasing number of contemporary British families created through surrogacy will get crucial stability and security. In order to create a future where surrogacy is handled with compassion, clarity, and legal certainty, reform efforts must be cooperative and take into account the opinions of legal experts, medical professionals, and the general public.

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The Law Commission. Building families through surrogacy: a new law. Law Com No 386. London: UK Law Com, 2019.

Besson, Samantha, et al. Comparative analysis on national and international surrogacy regulation and situation of LGBTI parents in Europe. Journal of Family Law (2022).

Centre for Social Justice. Finding Safe Harbour: how to improve support and protection for surrogate mothers. London: CSJ, 2013.

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