Earlier this year, the Law Commission published proposals to update the existing laws on surrogacy.

Currently, when a baby is born to a surrogate mother, the mother remains the legal parent until a legal process, known as a parental order, has been completed. Under the Law Commission proposals, the intended parents of a baby born to a surrogate mother would become the baby’s legal parents from birth. The new proposals also include reducing the time the surrogate mother has to change her mind, and allowing women who have never given birth to become surrogates.  

At WPUK, we are deeply concerned that the proposed change in law would shift rights away from the surrogate mother. The government have ruled out legislation to change the law in the current parliament, but a future government could still act on the LC recommendations.

Surrogacy Law Reform

WPUK meet with Law Commissions

Read the WPUK Law Commission consultation submission here #WPUKSurrogacy

In 2019, the Law Commission of England and Wales and the Scottish Law Commission undertook a public consultation on reform of surrogacy laws in the UK.  We were invited to meet with representatives of both Commissions. The following blog is a note of those meetings.

Development of proposals, time-frame etc.

• The Commissions have already begun to analyse the responses received to the consultation. The analysis work is being undertaken in-house. Once this work has been completed, officers will come to some provisional policy conclusions, so that a bill can be drafted.
• Commissioners will make the final decision about this. LC representatives stated that the consultation had received 679 responses in total but were not able to give a breakdown of how many were from organisations and how many from individuals. LC representatives were not able to speak about the views expressed in the responses but WPUK noted that the Commissions will publish all of the responses. LC representatives said they were continuing to talk to people about the proposals.
• The Commissions intend to publish a final report along with a draft bill in spring 2022. Government then decides whether to accept those recommendations or not. Government will produce an interim response within six months of receiving those recommendations and a final response within a year.
• The Scottish Law Commission will also consider how any proposals interact with Scots law as well as any cross-border issues.

Demand for reform

• A representative of the Commission had stated that there was a consensus with regard to the proposed reforms. When asked on what basis that claim was made, LC representatives told WPUK that there had been around 340 submissions to the 13th law reform programme of the Law Commission of England and Wales calling for reform of surrogacy laws. However, these submissions had not been placed in the public domain, so at the time of generating WPUK’s response to the consultation, it was not possible to make any independent assessment of these submissions. LC representatives responded that it was in all likelihood not possible to remedy this retrospectively but that they would relay that concern to the Chief Executive, so it could be taken into account for future consultations.
  

Consultation with surrogate mothers

• WPUK asked how many surrogate mothers the Commissions had consulted about the proposed reforms. We emphasised its strong view that their voices should be heard in the development of any recommendations and highlighted that such women were unlikely to well represented by any organised constituency. WPUK emphasised that it was important to consult women who had had both positive and negative experiences of acting as surrogate mothers, whether as ‘gestational’ and ‘traditional’ surrogate mothers. LC representatives responded that it was ‘hard to say’ in terms of numbers and that many discussions about the reforms had taken place in ‘open arenas’, where they would not necessarily have known how many attendees were surrogate mothers. LC representatives said that they had engaged with surrogate mothers via Surrogacy UK, COTS, Brilliant Beginnings and the All Party Parliamentary Group on Surrogacy.
• WPUK noted its concern that many of the organisations lobbying for reform had a vested interest in liberalising surrogacy laws and that the surrogate mothers the Commissions were likely to encounter via these organisations would be more likely to speak positively about the surrogacy experience. WPUK emphasised the importance of seeking the views of women who had had negative experiences of surrogacy.
• WPUK was told that the Commissions were acutely conscious of the vulnerability of surrogate mothers but that the surrogate mothers they had consulted often emphasised how vulnerable they felt as legal parent to the newborn child prior to legal parenthood being transferred to the ‘intended parents’ (given implications for some decisions, inheritance etc.).

Presumption of legal parenthood

• WPUK emphasised that its over-riding concern was about the Commissions’ proposal to change the presumption of legal parenthood, so that the ‘intended parents’ would have legal parent status from the moment of birth, with the woman then having a few weeks in which to object and withdraw from the agreement. WPUK spoke about the burden on women post-natally and asked whether the Commissions had consulted experts in perinatal health (including mental health) and organisations that advocate for the rights of pregnant women and mothers.
• WPUK was told that the Commissions had spoken to ‘some doctors and midwives’ and ‘some fertility specialists’. WPUK was told that someone from the Commissions had attended a conference organised by the Royal College of Midwives, that they had met with Maternity Action and that they had had a response to the consultation from the British Pregnancy Advisory Service.
• WPUK expressed concern about the time frame within which the surrogate mother could object to the surrogacy arrangement, which would be one week before the latest date for registering the birth. In Scotland, a birth has to be registered before the baby is 21 days’ old, meaning that a woman would have just 14 days in which to undertake the process to object so that legal parenthood could be reassigned to her. LC representatives noted that this was something they would be looking at.

 Care of the pregnant woman

• WPUK noted that it was aware that some organisations which advocate for the rights of ‘intended parents’ had lobbied NHS Trusts to change guidelines to enable ‘intended parents’ to attend ante-natal appointments and be present on the labour and maternity wards. WPUK expressed concern about the potential pressures on pregnant women acting as surrogate mothers and the need to preserve their rights to bodily autonomy. WPUK also expressed concern that a change in the presumption of legal parenthood may embolden these organisations to demand greater access to the settings in which surrogate mothers receive pre-natal care and give birth.
• WPUK was told that the right to bodily autonomy of surrogate mothers had shaped the Commissions’ discussions. WPUK was also told that it was important to consider the differential experiences of women acting as ‘gestational’ and ‘traditional’ surrogate mothers.

Review of literature on adoption

• Given the paucity of research undertaken on surrogacy, WPUK asked whether the Commissions had undertaken any reviews of the existing literature on adoption and the impact of adoption on birth mothers and children given up for adoption. WPUK was told that the Commissions had looked at the work of Susan Golombok at Cambridge University on donor conceived children and that this was felt to be a closer analogy than adoption.

Children’s rights

• WPUK asked whether the Commissions had undertaken a child welfare impact rights assessment of the proposals. WPUK was told this had not been done but that the Commissions would publish a ‘general impact assessment’. WPUK was told that the Commissions had considered the UN Convention on Children’s Rights (UNCRC) throughout the project and that there had been two UN special rapporteur reports. Noting that the Scottish Government had stated its intention to incorporate the UNCRC into Scots law, the Scottish Law Commission were considering how the proposals complied with that.
• WPUK asked whether the Commissions had consulted any paediatric specialists and were told they had not. WPUK emphasised the need to consider the documented benefits of skin to skin contact and initiatives like Unicef Baby Friendly. WPUK was told that there was an assumption that some of these experiences were unlikely under a surrogacy arrangement. WPUK highlighted that these were experiences that should be considered, given that some women will change their minds about the surrogacy arrangements.

General points

• WPUK highlighted its concern about the accessibility of the consultation, in particular the length of the document and the fact that consultation meetings took place at times which would have made it difficult for women who work and/or having childcare responsibilities to attend.
• WPUK emphasised the power dynamic that is likely to exist in most surrogacy arrangements, given the evidence shows that most surrogate mothers are from a lower socio-economic class than the intended parents.
• WPUK asked whether the Commissions accepted a characterisation of the proposals as a liberalisation of surrogacy laws in the UK. WPUK was told that the proposals were not intended to increase or make easier surrogacy arrangements but that their purpose as to create a ‘safe and appropriate framework’ for surrogacy to take place.
• WPUK asked whether the Commissions accepted that there was no right to parenthood. WPUK was told that the Commissions accepted this premise and that the proposals were being advanced on the basis that there should be no barriers in the way of forming a family.
• WPUK asked whether the Commissions believed that changing the presumption of legal parenthood would incentivise those who would not currently consider surrogacy to seek a surrogate mother in order to form a family, and that this might be an unintended consequence of the proposed reforms. The response of LC representatives was that the uncertainty experienced by ‘intended parents’ does not appear to deter people from pursuing surrogacy arrangements. WPUK was told that one driver for the Commissions’ proposed reforms was to deter surrogacy in developing countries, where it is often an exploitative practice, and to encourage potential intended parents to consider seeking arrangements in the UK. WPUK was told that a failure to regulate surrogacy might ‘push it underground’.

In March this year, the Law Commissions published their reform proposals, which you can read here.

On 8 November, the Secretary of State for Health and Social Care Maria Caulfield MP wrote to the Chair of the Law Commission of England and Wales stating that “parliamentary time does not allow for these changes to be taken forward at the moment”.

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