As the Law Commission announces a review of ‘outdated’ surrogacy laws in England and Wales, Dr Kirsty Horsey of Kent Law School, who leads the Surrogacy Law Reform project, says she hopes this will lead to positive legal change.
‘The uncertainty about how surrogacy operates domestically, including the fear of arrangements going wrong and surrogates seeking to keep the baby, is largely unfounded, but not helped by the way the law currently frames surrogacy.
‘Under current laws, the surrogate is the legal mother of the child at birth (and often her own partner is the other legal parent). With her consent, parenthood can be transferred to the intended parents via a ‘parental order’ granted by a court. But the processes for this often take many months, the rules foster uncertainty and not everyone is able to meet the requirements.
‘It is no surprise, then, that some would-be parents feel it is necessary or better to go overseas to access surrogacy – to destinations that come with almost guaranteed certainty of coming home with a baby. Destinations like the US, in the states where surrogacy is legal, are safe but can be incredibly costly. Other destinations involve more risk, but are cheaper.
‘Surrogacy has become big business in some destinations, meaning there is potential for exploitation of overseas women, especially in poorer nations. There are also risks to intended parents and children that can come with travelling overseas and in some cases children have been left stateless due to conflicts of national laws.
‘Many overseas destinations also recognise the intended parents on the birth certificates, leading to the misperception that the intended parents are the legal parents back home, when in fact this is not the case.
‘Surrogacy is in fact a well-established practice in the UK, with reputable non-profit agencies able to help people through the process, but our law is now over 30 years old and is inadequate and out of step with modern understandings of family – as society has changed beyond recognition, with the internet age, cheap travel, legalisation of equal marriage and wider acceptance of same sex relationships.
‘Anyone who keeps up to date with Kim Kardashian family – and millions do – will already be aware of their latest addition, a third baby due via a surrogate this Christmas. Closer to home, Elton John and David Furnish’s children were born via surrogacy in California.
‘There are increasing reports of ‘celebrity surrogacy,’ but this is not the reality of surrogacy for most people seeking to use it – many of whom have heartrending stories about how they came to surrogacy after years of trying to have children in other ways.
‘The Surrogacy Law Reform Project wants to see the parental order process reviewed to make it easier for intended parents to become legal parents of the children they are raising.
‘The government is already committed to altering a small part of the law because of the discrimination found against single people who use surrogacy to have their own genetically-related child.
‘The Surrogacy Law Reform project argues it would be in the best interests of the children and families to use the numerous good, reputable, non-profit agencies that work with surrogates and intended parents in the UK. These organisations are currently unable to advertise their services, which helps to lead to the misperceptions about surrogacy that cause some people to go overseas and/or use social media forums where cases have shown things can go horribly wrong and all parties are left unprotected.
‘We campaigned to persuade the Law Commission that a review was needed, and welcome the decision to begin the review to bring clarity to a law that doesn’t reflect the reality of modern families – and never did.’
Dr Kirsty Horsey, Kent Law School, is an expert in surrogacy law.