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The Shabby State of Surrogacy Laws in the UK

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About The Author

Erina Semanaj (Guest Contributor)

Erina is a law graduate from the University of Surrey currently working in Japan. She has a particular interest in intellectual property and family law, and enjoys drawing and playing badminton in her spare time.

Little souls find their way to you, whether they're from your womb or someone else's.

Sheryl Crow

Thirty-four years have passed since the Surrogacy Arrangements Act 1985 (henceforth SAA) was implemented. The realities of surrogacy have drastically changed since then. Despite once being debated as exploitation and even prostitution, paid surrogacy has rapidly become socially accepted, with celebrities such as Tom Daley and Kim Kardashian opting for such a route into parenthood. The SAA has since transitioned from an Act birthed from the view that surrogacy was against public policy and only acceptable on altruistic grounds into one which accommodates the modern reality of social and scientific shifts.

However, the Act’s archaic provisions and the ways judges have applied them have made prospective surrogacy-seekers hesitant to conduct their affairs in the UK. Instead, they seek surrogates abroad, creating difficulties such as assigning the child citizenship and obtaining their legal documents quickly.

This article will focus on the current legislation and issues surrounding surrogacy: the conditions required to grant a ‘parental order’, the slow steps being taken to rectify problems, and the possible options for reform.

Surrogacy Overview

Surrogacy describes the act where a woman bears a child to term on behalf of someone else who intends to become the child’s parent. The SAA was introduced after the Warnock Committee’s recommendation, and its key focus was on protecting children’s best interests by discouraging commercial surrogacy arrangements. The UK is in the tepid situation where surrogacy, whilst not legally prohibited, is generally discouraged. The current law prohibits surrogacy as a commercial practice and recognizes, but does not enforce, surrogacy arrangements.

The Human Fertilisation and Embryology Act 2008 (HFEA) developed a statutory framework on 'legal parenthood' for those that created a family through either surrogacy or assisted conception. Legal parenthood allows one to affect the child’s education, medical care and inheritance rights, and is granted automatically to the ‘mother’ and ‘father’, provided several conditions are met. Under Section 33 HFEA, a 'mother' in a case of artificial insemination is the woman that gives birth to the child. Under Sections 35 and 42, respectively, the father is the man married to the woman at the time of insemination unless he did not consent to the treatment.

Since the surrogate is considered the legal mother of the child, the intended parents have to apply for a parental order (PO) to obtain legal parenthood. The law on POs can be found in Section 54 HFEA: there are a number of conditions that must be satisfied before an order can be granted, a few of which will be discussed further on.

Current Lacunas in the Law

Time Limits

There are more than a few instances in which the law on surrogacy falls short. The legal mother is considered to be the woman who gives birth to the child, in this case the surrogate. Section 54(3) HFEA states that if the intended parents (IPs) wish to obtain legal parenthood and authority, they must apply for a PO within six months of the child’s birth; to say the courts are flexible with this time limit, however, is putting it lightly. In Re X (A Child) (Parental Order: Time Limit) [2014], for example, Sir Munby P granted a parental order despite the child being over 2 years old due to there being a lack of parliamentary discussion on the topic. Sir Mundy P interpreted the time limit as being ‘almost nonsensical’ and asked whether Parliament would have really intended for a PO to be blocked if it were a day late.

Similarly in the case of Re A and B (No 2 Parental Order) [2015], the High Court granted POs for children aged 8 and 5 as up until that point they had been legally parentless. Russell J had argued it would be unjust to give a delay that was ‘innocently wrought, even a very long one such as this, greater weight than the welfare of these children.’ She followed that the welfare principle should outweigh any public policy concerns.

This logic makes sense, but both of the applications were well over the time limit; to give effect to the right to family and private life under Article 8 of the European Convention on Human Rights (ECHR), Section 3 of the Human Rights Act 1998 (HRA) requires that legislation should be read and given effect in a way which is compatible with ECHR rights, essentially leaving the provision meaningless. It is apparent that parents are unaware they have to apply, and considering it is not always in the child’s best interests, it would be best to do away with this requirement.

Reasonable amount of payment

Another requirement is that although Section 54(8) HFEA forbids the IPs from paying money for a surrogate’s services, money can be exchanged so long as it does not surpass the requirement of ‘reasonable expenses.’ In actuality, if the applicants are found to be suitable parents under the Section, and there is no objection from the birth mother, a PO may be issued regardless of whether payment has been made. As made clear in Re X and Y (Foreign Surrogacy) [2008], the child’s welfare is paramount.

Taking this into account, whilst unlikely, those found paying for an arrangement could be ineligible for a PO. Hedley J summed it up neatly in Foreign Surrogacy when he stated ‘the welfare for the child… would be gravely compromised by a refusal to make an order’. This begs the question: if these requirements are not crucial, are they necessary?

Two people requirement

Despite both above requirements being approached creatively, the requirement in Section 54(1) HFEA for the PO application to be made 'by two people' was not granted a similarly creative solution.

In the case of Re Z [2015], the application was by a biological father where the American surrogate gave unequivocal consent to an order being made, and had the support of CAFCASS (the Children and Family Court Advisory and Support Service). It was argued that the courts should interpret and ‘read down’ the law flexibly as ‘one or two applicants’, per Section 3(1) HRA. However, the argument that the requirement for two people to make the application constitutes a discriminatory interference with a person’s right to private and family life under Article 8 and 14 ECHR did not succeed.

This discrimination against single parents makes no sense and appears thoroughly outdated in the modern era – many single people become legal parents through adoption, in vitro fertilization and donor conception. Of those contraception methods, however, only surrogacy is singled out. The court simply held that it couldn’t read down the law and that only Parliament could amend it.

The suggested amendment had been rejected before. As stated by former Member of Parliament Dawn Primarolo:

There is an argument, which the Government have acknowledged in the Bill, that such a responsibility is likely to be better handled by a couple than a single man or woman.

After appealing, Munby J ruled in Re Z that Section 54(1) and (2) HFEA were incompatible with the father and child’s rights pursuant to Section 4(1) HRA. The court was asked to declare the requirement that the application be made by two people incompatible with their Article 8 ECHR rights, either alone or considering Article 14 ECHR as well. After looking at Mennesson v France and Labassee [2014] and considering both the doctrine of proportionality and margin of appreciation offered to States when interfering with the individual’s Article 8 rights, the court found that the provisions overstepped permissible margins of appreciation and therefore interfered with the father and the child’s human rights.

This approach seems at odds with the creative liberty afforded to the time limit and reimbursement cases, and one can argue that this is due to the courts trying to enable a 'nuclear family' arrangement where possible. As of 2019, a Remedial Order has come into force that now allows single people to apply for POs, but one can see the difficulties the courts have had trying to balance the will of Parliament and the welfare of children.

Developments so far and possible reform

The different ways these requirements have been approached has led to a judicial piecemeal patchwork fix, and there has been a growing movement for surrogacy reform. In November 2017, a remedial order was introduced to Parliament by the then Minister Phillip Dune MP to allow a single parent to apply for a parental order. A month later, the Law Commission included a review of surrogacy in its 13th Programme of Law Reform and stated later that they have been granted government funding and have started working on a review of the laws surrounding surrogacy.

The key question is: what should the reform look like?  Due to all the uncertainty between the letter of the law and the reality of surrogacy, many IPs do not want to deal with the possible chance they will be denied a PO due to too much monetary support or applying too late. This uncertainty makes overseas surrogacy more appealing despite it often leading to children being ‘stateless and parentless.’ It is often not only commercial in nature but pricey, going against the ethos of current statute. There are concerns about regulation in other countries, particularly regarding the exploitation of surrogates to the point where countries such as India have now closed their doors to stop ‘surrogacy tourism’.

The core feature of family law has always been that the child's welfare is paramount. Reform should always centre on the child. Single people should be allowed to apply for surrogacy, particularly since other reproductive avenues are available to them, and this has been successfully remedied.

Likewise, the time limit or reimbursements requirements should either have an increased limit or be done away with completely, particularly considering their current lack of priority over the child’s welfare. The disparity between statute and practise exacerbates the increasing amount of commissioning parents traveling to countries where commercial surrogacy is permissible.

Whether surrogacy arrangements could be enforceable under contract law has been debated, but if they were, having to pay breach of contract damages would place the surrogate in a coercive position to hand over the child even if she had valid reasons for changing her mind. Craig Purshouse suggests that another approach the Law Commission could take is to look at the law of unjust enrichment. When a surrogacy agreement breaks down there will be a party that loses out. It would be unjust to require the surrogate to relinquish the child, but there is no need for her to keep the expenses given to her either. This suggested approach would strike a balance between allowing surrogacy agreements to be unenforceable, and IPs to recover at least some of their expenses.

Surrogacy should not, however, become commercialized – this creates a clear risk for vulnerable women who may be incentivized to become surrogates because they need money. Safeguards and thorough explanations of the risks of surrogacy and pregnancy should be required, but in the end poverty is a form of coercion and prevents the act from being a pure matter of choice. The Law Commission should bear in mind that effective reform can reduce the amount of people searching for and potentially exploiting surrogates overseas. By making the surrogacy arrangements transparent, coherent and protective of the surrogate, there will likely be a decrease in overseas surrogacy.

Conclusion

The SAA, and the following HFEA, in their current forms have many gaps, and the judiciary should not have to creatively interpret the law to this extent. It leads to a haphazard band-aid fix that isn’t desirable as it doesn’t match up with the clear language of Statute. The remedial order for single parent applicants is a step in the right direction, but it would be best if the SAA had a complete overhaul.  

As the internet and other technological developments make it easier to disseminate information, IPs might be enticed by different ‘options’ for surrogacy, including surrogacy abroad. Clearer legislation would reduce the confusion many IPs face when embarking on surrogacy and reduce the appeal of overseas surrogacy.  The creative, yet uneven, judicial application of the SAA has not helped create clarity, and the Law Commission review of the Act sparked by Re Z is set to identify and amend the problems caused by difficulties with parental orders, international surrogacy, and its regulation.

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Tagged: Family Law

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