The Law Commission for England and Wales recently published its joint recommendations with the Scottish Law Commission for the reform of surrogacy law

Our statement here will focus on highlighting the most troubling elements, but the CBC has published a longer and more detailed report on the recommendations here.

In 2020, the Center for Bioethics and Culture 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. 

We presented a robust case as to why surrogacy law should not be further liberalized 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.

Although commercial surrogacy is meant to be illegal in the UK, the “altruistic” model is easily unmasked as commercial-surrogacy-lite. There is no regulation or enforcement of the undefined “reasonable expenses” that legislation asserts may not be exceeded in payments to birth mothers. In addition, birth mothers receive maternity pay or maternity allowance, and also maternity leave, even though, unlike other mothers, they have no newborn to care for. These are surely unacceptable claims on taxpayers’ and employers’ money, as well as powerful commercial incentives.

The Commission’s recommendations for a “new pathway” for surrogacy simply presents a Hobson’s choice between bad alternatives, where the only ethical approach is to render all forms of surrogacy illegal, bringing the UK into line with most of the rest of Europe.

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 facilitation 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 those responsible on their return to the UK. 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 birth mothers, in order, it claims, to improve on the undefined “expenses reasonably incurred” in the Surrogacy Arrangements Act 1985. 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 also fails to understand that “payments” are the sufficient and defining characteristic that distinguishes commercial surrogacy from altruistic surrogacy: “In making our decisions, we have not focused 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).

The setting-up of “Regulated Surrogacy Organisations” (RSOs) is proposed, consisting of non-profit-making surrogacy industry agencies to oversee the new surrogacy pathway. The Commission states, “Only non-profit-making organisations can be RSOs, to make sure that their decisions are not influenced by commercial considerations” (4.3). However, these RSOs will be agencies that are actively involved in facilitating surrogacy arrangements, and where their founders and employees will be drawing salaries. They may not be profit-making agencies, but they have a clear financial interest in promoting surrogacy pregnancies and the surrogacy industry.

The new pathway requires a formal agreement between the birth mother and the commissioning parents – a Regulated Surrogacy Statement (RSS) – that is intended to provide new safeguards. 

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, or else in the case of international commercial surrogacy tourism. 

The Report also states that “some surrogacy teams may still choose to make agreements outside the new pathway” (3.1(4)). This option seems to imply that the new legislation being recommended is to be treated as non-binding on those who do not choose to opt into the pathway. Any commissioning parent who wishes to simply ignore it will be able to do so. 

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 in order to make it easier for the commissioning parents to transport purchased babies 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.

The Commission endorses payments that include “modest gifts” to the birth mother, including the cost of a “recuperative holiday”: something that surely looks like a means of introducing an additional financial inducement. 

The Commission wants to protect commissioning parents from prosecution at all costs, thereby removing the threat of criminal sanction when they are engaged in blatant commercial surrogacy: “(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)). 

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). This would make it easy for informal delayed remuneration agreements to be made that were kept out of the paperwork.

As well as greater demands on the state-funded National Health Service arising from the further facilitation and normalization of surrogacy, the Law Commission demonstrates its largesse with British taxpayers’ and employers’ money with 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 benefits be withdrawn to compensate for this. She will still receive these benefits from her employer or the state for up to 39 weeks, even though, unlike other mothers, she no longer has any baby to take care of. This is certainly a financial inducement that exposes “altruistic” surrogacy as a commercial transaction. In the case of surrogacy, two people might soon receive these payments and this leave, making surrogacy a doubly-expensive process for taxpayers and employers to support. 

The Commission intends 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. 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.


Author Profile

Gary Powell, European Special Consultant
Gary Powell, European Special Consultant
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.