Surrogacy Law Reform project
Surrogacy has been regulated in the UK since the Surrogacy Arrangements Act 1985. This legislation was the response to the recommendations of the Warnock Committee Report in 1984, which came out strongly against surrogacy, particularly any commercial aspects of the practice. The Act banned advertising for or as a surrogate and made it a criminal offence for a third party to procure a surrogacy arrangement.
The 1990 Human Fertilisation and Embryology Act added a section to the 1985 Act rendering all surrogacy arrangements unenforceable. It also created a mechanism – the parental order – under which legal parenthood could be transferred to the intended parents of a surrogate-born child after birth, providing certain conditions were met. Naturally, this required agreement from the surrogate (the legal mother of the child), but was also limited to married couples, at least one of whom was genetically related to the child, and the application had to be made between six weeks and six months after the birth of the child. In addition, no money in excess of reimbursement of ‘reasonable expenses’ should have changed hands. In 2008, parental orders were aligned with other changes to law, in that couples in civil partnerships and enduring family relationships also became entitled to apply (and now those in same sex marriages).
However, there remain many problems with the law on surrogacy as it stands, as has been evidenced in a series of court cases – mainly to do with parental order applications – arising in recent years. Some of these cases are further complicated by the fact surrogacy was undertaken internationally, raising issues about children’s nationality, citizenship or immigration status. Judges have found ways to circumvent the requirements of the law, in some cases, where to do so would be in the best interest of the child. They have retrospectively authorised payments to surrogates (particularly in overseas arrangements taking place in countries where commercial surrogacy might be more the norm) that seem in excess of what might be considered only ‘expenses’ incurred. They have extended the time limit in which applications for a parental order can be made. However, despite this progressiveness, the court has found itself unable to extend parental orders to a single applicant, finding that the letter of the law is clear. This in itself has proved controversial and is likely to be further challenged.
Already convinced of the need for surrogacy law reform, Dr Kirsty Horsey has been working on various projects to this end. In particular, she has recently worked with Surrogacy UK and others on a report making recommendations for reform. Details of Kirsty’s work on surrogacy can be found here.
Banner artwork by Lucy Birkbeck @lucy_birkbeck