The Law Commission for England and Wales recently published its joint recommendations with the Scottish Law Commission for the reform of surrogacy law, which is currently on the statute books as the Surrogacy Arrangements Act 1985 and the Human Fertilisation and Embryology Act 2008. The Commission began the process with the publication of its consultation paper in June 2019.
Many public (and private) bodies across the UK are regarded as having fallen to woke identity politics: a colonization that has happened on the watch of successive Conservative Party governments over the past decade. The LGBT+ gender lobby aggressively and falsely pushes surrogacy as a putative LGBT+ right. The Law Commission employee whose e-mail announced the Commission’s publication included her preferred pronouns in the “From” line of her e-mail as well as in her signature, so that her woke credentials were announced even before opening her message. An inauspicious barometer of the culture in which this report has been created.
In 2020, the Center for Bioethics and Culture had already met with the Law Commissioners (under the digital conditions of pandemic lockdown) to argue against a further liberalization of surrogacy law in the UK, with the CBC represented by its President, Jennifer Lahl, and its European Special Consultant, Gary Powell.
The Commission had already made clear that the UK Government had no intention of banning surrogacy, and that, therefore, our arguments for criminalisation fell outside the remit of their consideration. Nonetheless, the CBC presented a robust case as to why surrogacy law should not be further liberalised in Britain and explained how the LGBT+ gender movement is committing serious overreach by pushing surrogacy as a gay rights issue, when, in fact, it has nothing to do with gay rights, and everything to do with harming the rights of vulnerable women and children.
Whereas surrogacy is banned across most of Europe, and the European Parliament recently renewed its condemnation of surrogacy as “unacceptable and a violation of human dignity and human rights” and as a practice that “can expose women around the world to exploitation, in particular those who are poorer and are in situations of vulnerability”, the UK’s Conservative Party Government continues to support so-called “altruistic” surrogacy.
This is easily unmasked as commercial-surrogacy-lite, where there is no regulation or enforcement of the “reasonable expenses” that legislation asserts may not be exceeded in payments to birth mothers, and where, in addition, birth mothers receive maternity pay or maternity allowance, and also maternity leave, even though they surrender the baby on birth, so that they have no newborn to care for: surely an unacceptable claim on taxpayers’ and employers’ money. These are powerful commercial incentives.
The Law Commission’s Report is titled, “Building Families Through Surrogacy: A New Law”: a heading that belies the serious human rights violations that result from this practice, including the cruel separation of newborns from the only mother they know at birth, and the exploitation and instrumentalization of low-income and vulnerable women.
In its report, the Commission claims that its recommendations “will work better for children, surrogates and intended parents.” However, even though in some cases the Commission is aiming to introduce new clarifications and safeguards, these recommendations for a “new pathway” for surrogacy simply present a Hobson’s choice between bad alternatives, where the only acceptable legislation would be the wholesale criminalization of the practice, bringing the UK into line with most of the rest of Europe.
We outline in this brief report some of the Commission’s key recommendations as well as some serious flaws.
For their new “surrogacy pathway”, one major change is that the Law Commission recommends intended parents automatically become the legal parents from the birth of the baby, replacing current legislation where the birth mother is the legal parent from birth and where commissioning parents have to apply to the courts for a parental order: a process that can currently take up to six months to complete.
However, the birth mother will retain the right to cancel the surrogacy contract during the pregnancy, or to apply for a parental order herself up to six weeks following the birth.
Currently, the birth mother can prevent a parental order being made to the commissioning parents should she develop any concerns about their motives or character, or for any other reason, and the Commission recommends that this power of veto be removed.
Asserting that shortcomings in current UK surrogacy legislation make it more likely that commissioning parents will travel abroad and pay for commercial surrogacy, the Commission attempts to justify the clarification, facilitation, and further liberalization of so-called “altruistic” surrogacy at home in the UK as an ostensible means to discourage this.
However, the correct response to commercial surrogacy tourism abroad – which is going abroad in order to commit what would be a criminal offence in the UK – is surely to make commercial surrogacy tourism illegal and to prosecute on their return to the UK those who commission it. This is the approach taken to the commission of child sex abuse abroad by UK residents and nationals, who can be prosecuted in the UK under Section 72 of the Sexual Offences Act 2003 on their return.
The Commission has recommended clarification with regard to payments made by commissioning parents to surrogates, in order, it claims, to improve on the undefined “expenses reasonably incurred” in the Surrogacy Arrangements Act 1985. It recognises that the law is not being enforced in this area, leading to unsanctioned commercial remuneration: something long recognised by anti-surrogacy campaigners. However, the Commission also openly admits that it is recommending payments that go beyond “reasonable expenses”: “We use the term ‘payments’ instead of the term ‘expenses’ to highlight that we are not simply trying to permit payments that have been recognised as ‘expenses reasonably incurred’ by the courts under the formula used in the current law” (5.1).
The Commission’s barely-concealed tolerance of discreet domestic commercial surrogacy also becomes apparent with its absurd attempt to downplay the key significance of “payments” in causing an arrangement to amount to commercial surrogacy: “In making our decisions, we have not focussed on whether payments by the intended parents to the surrogate make an agreement “commercial” or “altruistic” in nature. Payments are only one part of what might make an agreement commercial or altruistic […]” (5.7).
Stating that international surrogacy arrangements “raise concerns about the exploitation of women and children”, the Commission presents its proposals for the automatic granting of legal parenthood to commissioning parents on the birth of the child as a means of discouraging commercial surrogacy arrangements abroad, where parenthood tends to be conferred on commissioning parents at birth.
The setting-up of “Regulated Surrogacy Organisations” (RSOs) is proposed, consisting of non-profit-making surrogacy industry agencies to oversee the new surrogacy pathway, with these organisations being regulated by the Human Fertilization and Embryology Authority (HFEA). The RSOs are regarded as “gatekeepers to the new pathway” and are envisaged as offering support to all parties as well as assessing whether all necessary conditions and requirements have been met.
The Law Commission states, “RSOs will be non-profit making organisations,
to ensure that their decisions are not influenced by commercial considerations”: a statement that commits very serious overreach, given that these RSOs will be agencies that are actively involved in facilitating surrogacy arrangements, and where their founders and employees will be drawing salaries. This is clearly a case of an industry that is banned in most of the rest of Europe being called on to regulate itself.
Agencies profiting from the surrogacy industry are intrinsically unethical, given that they facilitate an activity from which their own members benefit financially where women can die or be caused serious ill-health in the process, and where other forms of harm are caused to vulnerable women and children. Empowering these surrogacy industry actors with regulatory authority is a markedly retrograde step.
The suggestion that non-profit surrogacy agencies are “not influenced by commercial considerations” is patently incorrect. Although the agencies will not be operating as profit-making entities, they will still be paying salaries to their own staff, and their senior staff may be receiving significant remuneration. It is therefore beyond doubt that these “non-profit” agencies will have a vested financial interest in the promotion of the surrogacy industry and the proliferation of surrogacy pregnancies.
The new pathway requires a formal agreement between the birth mother and the commissioning parents – a Regulated Surrogacy Statement (RSS), signed by the birth mother, the commissioning parents, and the RSO. Also required are a pre-conception welfare assessment of the child; the seeking of independent legal advice and “implications counselling” by both parties; medical screening of the surrogate and the commissioning parents; and the carrying-out of advanced criminal record checks on the surrogate, her partner, the commissioning parents, and any adult over 18 who lives with the commissioning parents.
The Commission very naively states that “the pre-conception screening and safeguarding checks should mean that surrogacy agreements rarely break down”. It is clearly the case that the Commission is completely out of touch with what an interpersonal minefield surrogacy arrangements can be, with the possibility of the commissioning parents and the surrogate falling out, or the commissioning parents themselves falling out and splitting up during the process, or either the surrogate or the commissioning parents deciding on an abortion when the other party does not agree.
The RSS is to encompass a raft of information that confirms the pathway requirements have been met and that is also to include a description of permitted payments and details of the genetic material being used in conception, identifying the birth mother, the commissioning parents and known donors, or information on how to access donor identity via the HFEA register for “identity-release gamete donors.”
Although the new pathway will remove the requirement for most commissioning parents to apply for a parental order, an application will still need to be made if the birth mother withdraws her consent either before the child is born, or within six weeks of the birth; and also “where surrogacy teams choose to make agreements off the new pathway”, or in the case of international commercial surrogacy tourism.
The option “to make agreements off the new pathway” is one that deserves particular attention, as it implies this ostensible tightening-up of surrogacy law is being recommended as optional rather than mandatory. In which case, it isn’t a tightening-up at all, and any commissioning parent who wishes to benefit from the current surrogacy Wild West will be able to simply ignore it.
The new “parental order route” would be an alternative to the “new pathway” and would also be available to those seeking commercial surrogacy tourism abroad – a criminal activity in the UK – in order to make it easier for the commissioning parents to transport the babies they have purchased back into the UK and to be recognised as their legal parents. A facilitation of commercial surrogacy tourism is therefore included in the Commission’s recommendations.
RSOs would be regulated and licensed by the HFEA, and the Commission recommends that the HFEA create a surrogacy Code of Practice to guide RSOs.
Returning to the issue of remuneration, the Commission’s recommendations with regard to payments are intended to cover both the new pathway and the parental order routes, with a requirement that the commissioning parents “be required to meet some of (the) costs (unless the surrogate wishes to do so herself)”. Costs should cover life assurance and critical illness cover, commencing with the start of fertility treatment and lasting for two years from the point of conception, as well as screening and safeguarding costs.
In addition, the Commission suggests permitting “modest gifts” to the birth mother, including the cost of a “recuperative holiday” – something that might look to many like a financial incentive decidedly not in the putative spirit of “altruistic surrogacy” and a luxury that mothers do not normally enjoy after giving birth.
It is clear that the Commission is in the business of trying to create another piece of paper tiger legislation, similar to the Surrogacy Arrangements Act 1985 that does not seem to have resulted in a single prosecution. The Commission states, “(T)he birth of the child should not be tainted with criminality, as a result of imposing criminal sanctions directly on intended parents or surrogates for making payments which are not permitted”, (5.8 (4)). So even if commissioning parents in the UK were to pay the going rate for commercial surrogacy in California, they would not need to fear criminal prosecution.
Furthermore, the Commission sets limits as to the period within which payments to the birth mother from the commissioning parents would be regulated: “(O)n the new pathway we recommend that the rules on payments should apply between the time the surrogacy agreement is entered into, and the point six weeks after the birth of the child” (5.14). All the commissioning parents would need to do is to tell the birth mother that her big, commercial payment would arrive some time after that six-week limit had expired, with an agreement from both sides to keep this informal inducement out of the RSS regulatory paperwork and not mention it to the RSO.
The Commission recommends the introduction of a new Surrogacy Register, to be maintained by the HFEA, where all information regarding a new pathway agreement or a parental order process will be recorded. This would cover both gestational and traditional surrogacy, and both domestic and international arrangements. The purpose of this register is to enable surrogate-born people to find out more about their origins, normally at the age of 16.
As well as greater demands on the state-funded National Health Service arising from the further facilitation and normalisation of surrogacy, the Law Commission demonstrates its largesse with British taxpayers’ and employers’ money in its recommendation that commissioning parents should have “improved employment rights”, with one of the commissioning parents entitled for the first time to the equivalent of maternity allowance.
Bear in mind that no recommendation is being made that the birth mother’s current right to maternity allowance be discontinued to compensate for this: she will still receive statutory maternity pay from her employer, or else state maternity allowance for up to 39 weeks, even though, unlike other mothers, she has surrendered her baby to someone else to look after and bring up. Certainly a financial inducement that exposes “altruistic” surrogacy as a commercial transaction. In the case of surrogacy, two people would therefore receive these payments and this leave, making surrogacy a doubly-expensive process for taxpayers and employers to support.
The Commission also expresses its concern that the current law can cause a delay in the child being able to be brought into the UK or can cause the child to be left “stateless”. It recommends that international surrogacy arrangements be excluded from the new pathway, requiring the application for a parental order instead. By doing so, the Commission recommends excluding the birth mothers abroad, and the commissioned children, from the protections afforded by the new pathway, and this can only be deleterious to the well-being of vulnerable women and children. Surely a form of surrogacy colonialism, where the rights of an unknown foreign woman are treated as mattering far less than those of a British one at the hands of the wealthy who are able to afford six-figure commercial surrogacy payments.
The Government now has six months to provide an interim response to the recommendations, and twelve months to provide a full response.
- Gary Powell is the European Special Consultant to the Center for Bioethics and Culture. In 2021 he was appointed as Research Fellow at the Bow Group, the oldest conservative think tank in the United Kingdom. He studied Philosophy under the tutorship of Baroness Mary Warnock, who chaired the UK Committee of Inquiry into Human Fertilisation and Embryology that led to the Human Fertilisation and Embryology Act 1990. Gary regards surrogacy as a human rights violation similar to the sale of human organs and campaigns internationally to raise consciousness about the harm it causes to vulnerable people. As a gay man, he opposes surrogacy as an unacceptable LGBT rights objective on account of the serious violations it causes to the rights of other groups.
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