It’s time to talk about surrogacy

British law leaves potential parents in legal limbo
By Jake Richards

The surrogate birth of Chicago, Kim Kardashian and Kanye West’s youngest child, has brought the issue of surrogacy into the public focus. Many couples here, unable to have children themselves, may look on at the apparent ease by which Kim and Kanye entered into surrogacy arrangement with some envy. For many in the UK, hoping to engage a surrogate and fulfill their dream of having a child, the prospects are bleak.

Our surrogacy laws are a minefield for hopeful couples. Since the 1980s, a squeamish approach has emerged, with surrogacy operating in the shadows of the law – a practice neither fully accepted nor barred. This has led to an ambivalent regulatory and legal regime, which is inconsistent and causes widespread confusion.

The first official response to surrogacy was the Warner Report, which informed the Surrogacy Arrangements Act 1985 and this remains the lynchpin of the law in this area.

In the eyes of the law surrogacy was seen as an illegitimate method of starting a family

Commissioned by the Thatcher Government, the report was published in the context of a media outcry caused by the cases of “Baby Cotton”  case when, in 1985, British woman Kim Cotton was controversially paid £6,500 to be a surrogate for a wealthy foreign couple.

The provisions of the report were wholly restrictive, introducing the criminal offence to have an operation that recruits or advertises for women to act as a surrogate.

The report stopped short of making any surrogacy arrangement a criminal offence, but only narrowly. The general thrust of the report was summed up in its conclusion: We do not envisage that this legislation would render private persons entering into surrogacy arrangements liable to criminal prosecution, as we are anxious to avoid children being born to mothers subject to the taint of criminality’.

While never criminalised, in the eyes of the law surrogacy was seen as an illegitimate method of starting a family. The potential benefits of surrogacy, or provisions to formalise surrogacy arrangements that were already occurring, were apparently not considered.

Remarkably, the law has not, in any meaningful way, developed since these provisions were enacted more than 30 years ago. There have been some incremental permissive steps to align surrogacy law with other progressive developments, such as providing for civil partnerships and maternity leave for mothers of surrogate children. However, the law’s approach started from a position of deep scepticism and remains highly restrictive.

This might be about to change. The human desire many have to be parents means the numbers using surrogacy are increasing. There has been a tripling of official surrogacy arrangements over the last five years. This has even warranted a surrogacy storyline in The Archers – a symbol of any issue’s social prominence - with a gay couple seeking a child through a surrogate.

There is also an increasing recognition that the current law is a mess. Last year, the law on surrogacy was deemed incompatible with the European Convention of Human Rights – forcing Parliament to consider amendments to the current legislation in this session.

At the end of 2017 The Conservative MP Andrew Percy set up an All-Party Parliamentary Group dedicated to the issue of surrogacy. Launching the group, he said, “the law is currently outdated and inadequate and fails to represent the reality of modern day surrogacy in the UK and the changed perceptions of family”. The Law Commission, following suit, also announced a full review into the law relation to surrogacy arrangements. While there is a broad consensus that the law needs reform, there has been a distinct lack of debate regarding the nature of the change we desire.

The most controversial aspect of the law in need of reform is the criminal offence of commercial surrogacy that bars any element of profit from a domestic surrogacy arrangement. It is also illegal to advertise for a surrogate or undertake commercial surrogacy – although “reasonable expenses” are allowed. The aim of this provision is admirable – there is an understandable wariness of allowing a practice that may exploit women. More broadly, there is a deep, almost intrinsic, uneasiness about allowing a profit-element to the process of conception and labour.

The law’s absurdity is compounded because the courts themselves openly disregard it

Regardless of the aims, the current law is simply not working. The law is meaningless for the very rich, who can find methods of overcoming the statutory barriers. The ease by which wealthier couples can take advantage of international surrogacy deems our law blunt. In many states in America - including California, home of Kim and Kanye - commercial surrogacy and pre-birth arrangements are legal. It is perfectly viable for a wealthy couple to enter into a commercial arrangement in America and then return to the UK and apply to be legal parents. If they attempted to do this in Scunthorpe, they would be in breach of the law. It is no coincidence that the one mainstream media publication in the UK to undertake an in-depth feature on surrogacy this year was Vogue – chronicling the long list of celebrities who have used international surrogacy.

The law’s absurdity is compounded because the courts themselves openly disregard it. In one case that came before the Court of Appeal in 2009 a surrogate had been paid a sum for a deposit for a new flat in return for her childbearing capabilities. The court was forced to turn a blind eye to the letter of the law, because the child’s best interests demanded it. The Court was, rightly, unwilling to punish the parents and the child for the commercial aspect of the transaction.

While there is an understandable nervousness about legalising a practice that may encourage exploitation of poorer women to use their bodies for monetary gain, the ban on commercial surrogacy is essentially redundant. It merely serves to make it more complicated and expensive to use a surrogacy arrangement than it might otherwise be.

There remains strong opposition to allowing a commercial market to emerge. There are some who compare commercial surrogacy with prostitution - with women legitimately put under economic pressure to use their bodies. There are however fundamental differences. The most persuasive argument for such a liberalisation of the law on prostitution is that if prostitution is a reality, it is better to ensure the process is open and occurs safely. Yet, this approach lacks ambition. A system that allows men to pay for a woman’s body for nothing but sexual gratification is fundamentally wrong, offering no social good, whether legal or illegal, undertaken safely or unsafely.

Conversely, the result of a surrogacy arrangement is, if undertaken safely and consensually, purely positive. A couple have a family they long for, while a surrogate has benefited financially. People may feel so uncomfortable about a person using their body for money that they prefer the practice to be criminalised. However, there are many questions for those who hold such a position. For example, what is it about the use of reproductive capabilities that so differs to the physical and mental arduousness offered by many jobs – offering very little or nil social benefit – in our economy? The reverence to the act of conception and labour may be admirable, but if we allow such arrangements to occur internationally, with the child returning to the UK, why are we so reluctant to allow commercial surrogacy to happen here? Our courts have overlooked the criminalisation of commercial surrogacy, so how do they presume to enforce their position? It is time for these questions to be debated in parliament.

More obvious is the need for the law to now accept pre-birth surrogacy arrangements. Currently, the law of surrogacy comes into effect after the birth of the child. Although pre-birth agreements will inevitably be taken into account by the courts, they are non-binding and not provided for in law. This approach is nonsensical. All pre-birth agreements are unregulated meaning that by the time the law can intervene to ensure they are safe and consensual, it is too late. A baby is born.

In a case before the High Court in 2016, a surrogate had originally consented to the surrogacy after meeting the intended parents for less than two hours at a fast food restaurant and signing a document that mimicked a commercial surrogacy arrangement from America that had been found online. The potential surrogate had learning difficulties, and was not accompanied by any appropriate advising adult. She later changed her mind and sought to keep the child.

It is unfathomable that a court would have allowed such an agreement to take place if the parents had been forced to seek a pre-birth order authorising the arrangement. The current system encourages chaos that has to be dealt with once the child is born. With the rise of international surrogacy, this also leads children to being born without a certain immigration status. Dame Lucy Theis, a Judge in the Family Division has said the situation is a “ticking legal time-bomb”, because our current model discourages formal avenues for surrogacy arrangements with potentially thousands of children finding themselves in a legal vacuum – parentless and stateless.

Surrogacy is uncomfortable. It forces policy-makers to consider difficult ethical issues where the normal contours of politics are ill-suited. This has meant that the issue remains trapped by an archaic and unworkable regulatory system. While we pride ourselves on our modern approach to sexuality, families and fertility, surrogacy remains one of the final issues we are yet to confront.

The time has come for Parliament and politicians to address this issue. While they  prevaricate, the dreams of many potential parents are put on hold.

An earlier version of this article was awarded second place in the Bar Council Law Reform Essay Competition 2016