In May 2018, the Law Commission of England and Wales and the Scottish Law Commission finally began work on a surrogacy reform project. On 6 June 2019, it published a much-anticipated joint consultation paper, entitled “Building families through surrogacy: a new law”.
Its starting point is that existing surrogacy law is outdated and needs reform to take account of changes in medicine and science over the last thirty years. Unlike previous approaches, it starts from the premise that surrogacy is now an accepted form of family building as recognised by the Department of Health and Social Care in its guidance on surrogacy arrangements.
It departs from current law, policy and practice and proposes a new regulated surrogacy pathway without the need for a court application. This will enable intended parents (subject to eligibility) to become their surrogate born child’s legal parents at birth with parental responsibility if the surrogate does not object within a defined period of time. However, this new surrogacy pathway will only cover domestic surrogacy arrangements that meet strict conditions. If these conditions are not met or if an international surrogacy arrangement has been undertaken, it will still be necessary to apply to court for a parental order.
For the first time, it sets out a codified approach to surrogacy in the UK from pre-conception through to birth and where necessary a post-birth parental order application. This pathway proposes matching with or finding a willing surrogate through a regulated surrogacy organisation or licensed clinic. It recommends more rigorous safeguards prior to conception including enhanced criminal records checks, medical screening and implications counselling of intended parents, surrogate and her spouse or partner to better protect the child’s welfare. It proposes independent legal advice for the surrogate and the intended parents and a written surrogacy agreement between the parties. It also proposes that there should be a regulator for surrogacy (the Human Fertilisation and Embryology Authority) and the creation of regulated surrogacy organisations who will oversee and counter-sign surrogacy agreements within the new domestic surrogacy pathway.
It proposes a new national surrogacy register to enable surrogate born individuals to access information about their genetic and gestational origins, including surrogates, egg and sperm donors. This will help inform and improve the interests and rights of surrogate born individuals and bring surrogacy in line with existing donor conception policy on information rights in the UK.
It proposes the removal of the need for a genetic link between the intended parents and the child where medically necessary under the new surrogacy pathway and potentially for all domestic surrogacy arrangements (currently a requirement for a parental order). However, it recommends that the requirement for a genetic link should remain in international surrogacy arrangements given ongoing concerns abroad about exploitation and child trafficking.
It makes no proposals for a maximum age limit for women to become surrogates or for intended parents. However, it does propose that there should be a minimum age of eighteen for a surrogate to match the current requirement for intended parents.
It also makes recommendations to improve the existing parental order regime, which include: removal of the 6-month statutory deadline (which has already been eroded by case law), removal of the surrogate’s absolute veto to the grant of a parental order (enabling the best interests of the child to prevail) and introduction of an additional alternative eligibility requirement of habitual residence to assist those unable to meet the domicile criteria.
It also recommends unified guidance on nationality and immigration issues and provision for recognition of legal parenthood across borders in international surrogacy cases (subject to conditions) to help intended parents return to the UK with their surrogate born child.
It further proposes that a surrogate should be able to enforce payments that are due to be paid under the terms of a surrogacy agreement. However, it stops short of making recommendations about the level of payments that should be made in a surrogacy arrangement. It recognises that people have strongly held and opposing views about what payments intended parents should be able to make to a surrogate. It also acknowledges that in making its proposals for reform an increase in the cost of surrogacy may put it beyond the financial reach of some intended parents who are currently able to access it. It states that any increase in cost in surrogacy is a significant matter as new law is developed. It therefore invites consultees’ views on potential categories of payment that intended parents should pay a surrogate in order to seek a consensus on this issue
Overall, the Law Commission’s consultation seeks views on 118 questions and issues in relation to surrogacy to inspire debate and help inform its final recommendations. Its consultation on surrogacy law closes on 27 September 2019. In 2021, it is expected to publish its final recommendations for law reform, together with a draft standalone bill setting out proposals for new law governing surrogacy arrangements in the UK.
The wider picture
In the absence of centralised record keeping, the precise numbers of UK children born each year through surrogacy are unknown. Whilst it is agreed that demand for surrogacy in the UK has increased in recent years, only 367 parental orders were granted in England and Wales in 2018 (up from 117 in 2011). Surrogacy is therefore only providing a fertility and family building solution (albeit an important one that matters to parents, children, families and surrogates) for a small number of people in the UK.
The work and recommendations of the Law Commission on surrogacy and law reform represents some progress. However, it only makes a small inroad into a much bigger set of fertility and family building issues and problems in the UK that also urgently requires law and policy reform.
The significance and value of individual fertility and reproductive legacy will become increasingly clear to us in the short and medium term. Male fertility has dropped by 50% in the western world in the last 50 years and the reasons for this decline are not fully understood. The UK is not sufficiently replacing its population and recent changes in our political agenda resulting in Brexit will bring this into sharper focus as we look to create a different and more autonomous future. UK individuals are leaving it longer to have children. The average female age at first birth is now 30 and rising and the average age of IVF patients in the UK is currently 35.5 years. The demand for fertility treatment continues to grow and in 2017, 54,760 patients underwent 75,425 cycles of fertility treatment at UK licensed clinics. We are also increasingly becoming a top-heavy nation with an aging population that needs to be cared for and supported by a diminishing and economically challenged younger generation.
The de-centralised approach to funding of IVF treatment on the NHS across England continues to cause inequality and misery and fuel the IVF Postcode Lottery. Latest figures published by the HFEA show that in 2017 only 35 percent of fertility treatment in England was funded by the NHS (and within this there was little or no provision for surrogacy). The picture is better but far from ideal in other parts of the UK with Scotland funding 62 percent of fertility treatment on the NHS, whilst Northern Ireland funded 50 percent and Wales just 39 percent of fertility treatment on the NHS.
There are ever-increasing pressures upon NHS services and delivery and budget deficits and staff shortages are a growing problem. This will continue to impact upon our ability as a society to provide up-to-the-minute GP, gynaecological, fertility treatment, obstetric, emergency and other healthcare services on the NHS required to support conception, pregnancy and other needs of our population
We continue to see increased commercialisation of the fertility and medical space, with private equity groups increasingly dominating healthcare provision. There are also growing concerns across the UK about the costs of private treatment, particularly private fertility treatment and the cost and value of IVF add-ons. Furthermore, there are numerous different fertility sector groups and organizations. This often results in a fragmented approach and response to issues across the sector.
Over the last decade, I have been privileged to help change and improve surrogacy as well as wider fertility law and practice in the UK. Like others, I have called for law reform and strived to make a difference to help parents, children and surrogates build and protect much-wanted families. I was a member of the Surrogacy UK Working Party Group for Law Reform from 2014-18 and a contributor to its seminal report on surrogacy and law reform in 2015. I have also played my part in milestone cases spanning the family, fertility and medical sectors, starting with the first UK case for overseas surrogacy in 2008, Re X and Y (Foreign Surrogacy) EWHC 3030 (Fam) and in 2018 the first case to award damages for commercial surrogacy, fertility treatment and donor conception following medical negligence, XX v Whittington Hospital NHS Trust EWCA Civ 2832.
However, the time has come for a new centralised approach that extends beyond the current law and policy focus on surrogacy and the work of individuals. A dedicated Minister for Fertility would help develop a unified voice, agenda and future direction for the fertility sector as a whole. It would also help develop a mandate for and ultimately a robust fertility policy and political strategy that encompasses fertility preservation and maximisation, fertility treatment and conception, pregnancy and birth, family expansion and legacy in the UK.
Individual fertility and family building are key components in the stability and future success of our society. The nature of family life, people’s expectations and choices and advances in science and technology have changed significantly over the last twenty years and continue to outpace law and policy frameworks in the UK. A paradigm shift in thinking and approach, together with intelligent root and branch law and policy reform is required. This will require an enlightened and multi-disciplinary approach that encompasses greater understanding and debate about the role and value of digital technology, genomic science and medicine and individual fertility. It will also require a new centralised approach and joined up thinking with healthcare, social welfare, education, science, technology and economic policy.
The work of the Law Commission on surrogacy law reform marks a step forward. However, we must ensure that this does not result in the sum total of the government’s commitment and agenda for reform of fertility law and policy as whole in the UK. If we are to continue to prosper as a society, we need to develop new legal frameworks, policies and political strategies that will meet the very rapid and significant changes that will continue to impact our lives and futures and increasingly impact on our fertility and family building choices.
This article was first published in the July/August 2019 edition of Resolution’s The Review Magazine.