The Law Commissioners’ Key Proposals for Surrogacy Law Reform in the UK

This is an edited transcript of Anna Fisher’s talk at the What’s wrong with surrogacy? webinar on 6 September 2020.

I’m going to very briefly run through the law as it currently applies in England and Wales and then I’ll explain the key features of the proposals for change that the Law Commissioners put forward in their recent consultation and what we expect to happen next.

The current law on surrogacy in England and Wales

Under the current law there’s a total ban on surrogacy agencies advertising their services. Theoretically only ‘altruistic’ surrogacy is allowed but in practice significant payments are often made to both birthing mothers and agencies.

When the child is born, the birthing mother is the legal mother. So although generally the commissioning parents look after the child, the birthing mother has some oversight in the first weeks and months, until the commissioning parents apply for a ‘parental order’ from the courts. This requires social services[*] to undertake an assessment of their suitability and judges to rule in what they see as the child’s best interests.

Altruistic surrogacy

But even when surrogacy is truly altruistic – there’s no guarantee it will go well.

A woman got in touch to tell us how she became a ‘surrogate’ mother for some old family friends and it all went terribly wrong. She said she thought she was well-informed but in fact she had no idea what she was really letting herself in for.

The commissioning parents felt the unborn babies were ‘theirs’ and they were therefore entitled to make medical decisions for her during the pregnancy and birth. The long and the short of it was, she was left with severe PTSD and the relationship with the commissioning parents completely broke down. She now doesn’t believe any woman should ever be put in that position.

We know of other women who’ve had similar experiences – for example a young woman who was pressured by her family into being a ‘surrogate’ mother for her infertile older sister. That also went pear shaped and she’s now estranged from the rest of her family.

This illustrates two major problems with the reality of surrogacy – (a) how easily women are coerced into doing it, and (b) that it generates a profound conflict of interests between the birthing mother and the commissioning parents, who invariably have a sense of entitlement and ownership over the foetus before it is born.

'Reasonable expenses' for surrogacy

However, it becomes even more complicated as soon as money changes hands, and brokers are involved.

Under the current law in the UK, women can be paid what are called ‘reasonable expenses.’ These currently average between £12,000 and £20,000 – but can be considerably more when the child is born under a commercial arrangement in, for example, California.

The payments must be approved by the judge who deals with the parental order. But in practice receipts are not required and judges have so far never refused a parental order on the basis of excessive payments.

Average annual salaries of teaching assistants and cleaners in the UK

To put these payments in perspective, they are more than a lot of teaching assistants and cleaners earn in a year.

Paying women who are struggling in poverty significantly more than they can earn in a year is a powerful financial incentive. And don’t tell me that it won’t make people want to pimp out their partners or the younger women in their family for exploitation in the surrogacy industry.

So, in reality it’s not true that only ‘altruistic’ surrogacy is allowed in the UK. Women are already being paid to be ‘surrogate mothers’ – and in many cases, agencies are making a handsome income.

The surrogacy consultation

The Law Commissioners ran a consultation on their proposed changes to the law last summer, ending in early October.

It had 118 questions, many of which had multiple parts and most of which required you to formulate detailed answers. To understand the questions, you needed to read the consultation paper which ran to 502 dense and technical pages.

The surrogacy consultation had a summary paper

There was a ‘summary paper’ but it provided a one-sided picture and not enough information to enable informed responses to most questions.

The first question in the surrogacy consultation

There were no high-level questions on the ethics of surrogacy and most went into complicated technical and legal issues. For example, this was the very first question.

Responding to the consultation was therefore complicated, time-consuming and difficult, particularly if you disagreed with the proposals.

The key proposals of the surrogacy consultation

The proposals are extensive and there isn’t time to go through everything. But the ones that we believe are key are what they call a ‘New Pathway’ to parenthood, likely increased payments to birthing mothers, no restrictions on advertising, regulated ‘not for profit’ agencies, and a national register of surrogacy arrangements.

I’ll go through each of these separately.

The 'New Pathway to parenthood'

First the ‘New Pathway.’ This image is from the summary paper and it illustrates the proposed steps. They break it down into three phases: pre-conception; conception, pregnancy and birth; and post-birth. Don’t worry if you can’t read the text, I’ll go through each phase separately.

The New Pathway: Pre-conception

The pre-conception stage has a number of steps.

First the commissioning parents and the birthing mother need to identify each other – And usually an agency will facilitate this.

Then all the parties have to undergo basic health and criminal record checks and have independent legal advice and what the Law Commissioners call ‘implications counselling.’ This won’t be therapeutic counselling looking at why the woman wants to undergo such a dangerous procedure for someone else’s benefit but will inevitably be more a rubber-stamping exercise.

There will also be a very shallow assessment of the welfare of any child born of the arrangement, but this won’t be comparable with pre-adoption assessments. For example, there will be no home visit.

Once all of these things have been successfully negotiated, lawyers will draw up a written agreement that the parties will sign. This will specify what the birthing mother will be paid – and this will be the only legally binding part of the agreement – theoretically at least.

The New Pathway: Conception, pregnancy and birth

Most commercial surrogacy is predicated on harvesting eggs from healthy young women. When people are looking for an egg donor, they’re presented with a catalogue, listing women with their features, skin, hair and eye colour, height, weight, sporting and academic achievements, etc. This is eugenics – the deliberate manipulation of human characteristics. Eugenics was big in Victorian Britain and Nazi Germany – largely to justify and legitimise their appalling racist ideologies. But after the Second World War it was rejected by mainstream society as abhorrent. Yet the Law Commissioners don’t mention it and make no recommendations for addressing it.

Egg harvesting is risky and can lead to serious health complications, including premature menopause, increased risk of cancer, ovarian hyperstimulation syndrome and even death. The Law Commissioners make no recommendations for measures to reduce the risks for the women concerned.

As I’ve already mentioned, surrogacy inevitably involves fundamental conflicts of interests between the commissioning parents who consider the foetus to be theirs and the birthing mother. The Law Commissioners didn’t consider how to minimise this and their proposals are likely to make it worse. For example, the agreement is likely to say that the commissioning parents can attend the antenatal scans and be present at the birth.

But it is the birthing mother’s body and under international law she has an absolute right to make decisions about her body and the foetus she is carrying without interference. The Law Commissioners’ proposals are likely to weaken her position and leave the health service dealing with the predictable problems. And because the commissioning parents are likely to be richer and more confident and have a strong sense of entitlement, they are likely to get their own way.

We have heard from Liz about the considerable health risks of undergoing a surrogacy pregnancy. The Law Commissioners proposed no measures to reduce these risks – for example by forbidding multiple embryos to be implanted, limiting the number of surrogate pregnancies a woman can undertake, or an upper age limit.

The Kennel Club restricts the ability of commercial dog breeders to exploit female dogs by a strict age limit and allowing no more than four pregnancies. How shocking is that? More protections for female dogs than the Law Commissioners propose for women. More protections for puppy farming than for human baby farming.

The New Pathway: Post-birth

Under the ‘New Pathway’ the commissioning parents automatically become the legal parents of the child at the moment of birth.

This is what all the vested interests want – certainty that the commissioning parents will get to legally own the baby that for all intents and purposes they have bought, and the brokers and lawyers will be assured of their fee.

The birthing mother will have just five weeks (three weeks in Scotland) to lodge an objection. But it will have to be in writing and follow the correct procedure and she has to do this during the period she’s recovering from the birth and her body is undergoing the greatest and fastest change that a human body ever undergoes in normal health. She may have had a Caesarean section and so will also be recovering from major surgery. And that’s not to mention her emotional state which is often volatile during this period anyway but to which we must add the shock and grief at the loss of the baby she has felt moving in her belly for months.

If she finds she doesn’t believe the commissioning parents are in fact suitable to raise this child or she realises she doesn’t want to give up the baby after all, she has only five weeks to get the paperwork together and lodge an objection. If she does manage to do this, she then automatically becomes the legal mother of the child and the commissioning parents’ legal parenthood is rescinded and they will have to apply for a parental order as under the current system.

But the commissioning parents are likely to have custody of the child and so the presumption will be with them becoming the legal parents. And they will probably have considerably more power, along with support of the brokers and lawyers, than she does.

Much of this is justified by the claim that one or both of the commissioning parents are the biological parent of the child because they supplied the sperm or egg.

But this notion that the egg and sperm donors are the biological parents is problematic – because it disappears the role and the relationship of the birthing mother. Without her, eggs and sperm are waste products. Most end up in the loo or wrapped in a tissue in the bin.

Removing the birthing mother’s automatic right to be named as the legal mother of the child would not only remove an important safeguard to the child’s welfare but would also set a precedent that will inevitably impact all women down the line – because it essentially reduces the enormous biological and psychological investment of pregnancy, childbirth, and the postpartum period to the equivalence of a man’s momentary ejaculation or a wad of cash.

Payments

The Law Commissioners acknowledge that the people they considered ‘stakeholders’ (which pretty much excluded anyone without a vested interest in a booming surrogacy industry) had very different views on payments. They therefore didn’t put forward clear proposals and instead had about 45 dense pages of discussion and 17 confusing questions on payments – none of which asked anything simple such as, Is it ever right to pay a woman to bear a child for someone else?

The questions are all predicated on the need for a plentiful supply of women to undergo surrogacy because that is what the business model needs and is the only thing that will satisfy the every-increasing entitlement of those who consider (erroneously of course) that getting a child through surrogacy is their human right.

The buying and selling of babies is forbidden under binding international law. If the commissioning parents pay a woman for surrogacy, how is that not buying the baby? What are they paying her for otherwise? The argument they’re paying her for a service doesn’t really wash. Because the pregnancy is of no intrinsic interest to the couple – as is evidenced by the terminology used, such as the birthing mother being called a ‘carrier.’ They are only interested in the pregnancy insofar as it produces a live and healthy baby at the end of it.

The Law Commissioners claim that their proposals do not amount to buying and selling babies. But that is smoke and mirrors. Their proposals will enable the buying and selling of babies in all but name.

There was also a startling absence of any measures to address the risk that partners and others will pimp women into paid surrogacy, nor any recognition that this needs to be made an explicit criminal offence.

We should be aiming to discourage surrogacy, not increasing demand for it by making it easier and strengthening the legal rights of commissioning parents.

Advertising egg harvesting to young women

The Law Commissioners have proposed ending the current ban on advertising.

This will lead to more people wanting to take advantage of surrogacy – and even thinking they have a right to it.

Women who have real choices for decently paid meaningful work do not as a rule put themselves forward to rent their wombs.

So, the rent-a-womb industry will need significant numbers of healthy young women to put themselves forward.

Young women are already bombarded by online adverts like this one here from fertility clinics seeking to harvest their eggs. Typically, the ads present a rosy picture and don’t mention the grave risks.

Surrogacy advertising free for all

This is a US advert I found on Twitter. If all restrictions on advertising are removed, Facebook and other social media companies will push adverts like this onto the feeds of young women – and no doubt likewise there’ll be no mention of the risks.

This will send out the message to young women that surrogacy is a reasonable way of solving their financial problems. We’re currently facing an unprecedented economic downturn that is hitting women and children hardest. Do we really want renting your womb to be one of the few options left for poor women to make the money needed for survival?

Do we really care so little in this country for our young women that we will put them through that? That we will suggest that it is a reasonable, safe thing to do?

We don’t allow advertising for things like smoking that carry health risks. How on earth can it be justified for surrogacy which carries so many risks, including premature death?

Not for profit agencies

Another proposal is to allow ‘not for profit’ agencies, regulated by the Human Fertilisation and Embryology Authority (HFEA), to provide ‘matching and facilitation’ services.

On the surface, this may sound reasonable. But in practice even if they are technically ‘not for profit’, they will need to cover their costs, which no doubt will include swanky offices and hefty salaries for executives.

This will mean that in practice commercial objectives will drive them and they will need to continuously seek new ‘business’ and new women who can be convinced or coerced to rent their wombs. This will inevitably lead to a rapid expansion in the number of surrogacy arrangements.

To hint at the reality, this slide shows two screenshots from the Brilliant Beginnings website. Brilliant Beginnings claims to be a not-for-profit agency but it was founded by Helen Prosser and Natalie Gamble from NGA Law which describes itself as “the UK’s leading fertility law firm” and which has publicly stated that they don’t think the Law Commissioners’ proposals go far enough.

No doubt Brilliant Beginnings stay within the letter of the UK law on non-profits, but it is hard to believe that they don’t introduce clients who need legal services to NGA Law and I can’t help wondering how many surrogacy arrangements they need to facilitate to pay for their central London office and staff?

The National Surrogacy Register

Children have a right to know their origins. Although we would prefer there to be no surrogacy in the UK, while even one child is born this way, there clearly needs to be a mechanism for them to find out where they came from. We therefore tentatively support the proposals for a national surrogacy register. The Law Commissioners propose that this should record the identity of the commissioning parents and the birth mother but only non-identifying information about the gamete donors, with children having access to it from the age of 16 or 18.

We believe it should also record identifying information about the gamete donors.

Current status of the Law Commission's surrogacy project

According to the Law Commission website, they are now “analysing the responses to the consultation and continuing to engage with stakeholders about the views they expressed” and monitoring the evolving case law.

After that, they’ll formulate their final recommendations to the Government and will produce draft legislation to put before Parliament – probably in early 2022.

It’s important that we raise awareness of this now and inform people about what the consequences will be for women and children so that we can form a resistance. We’ll provide suggestions for what you can do later in the webinar.

[*] One of the attendees at the webinar got in touch to tell us that in fact it is Cafcass, the Child and Family Court Support Service, who carry out this assessment, not social services as such.

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