Why UK surrogacy laws need a 'real overhaul' | Boodle Hatfield

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03 May 2023

Why UK surrogacy laws need a ‘real overhaul’

Family Partner, Harriet Errington provides legal commentary in a thought provoking piece by Eloise Hendy on the complicated system governing surrogacy in the UK.

Two men sit close to a webcam. They are both in tears. The man on the left, who has stubble and a soft quiff of hair, presses a thumb into his eye socket, as if to try and push the tears back in, and laughs. “Why are we crying?”

“I know it’s the process, and I know it’s the way it has to go,” the darker-haired man at his side says, his eyes red-rimmed and glistening, “but you always feel like you’ve done something wrong.”

The reason Stuart Armfield and Francis Haugen are so overcome with emotion is that they have just become parents. Or, to put it more accurately, a judge has just granted them a parental order, which allows them to be recognised as the legal parents of their son, Rio, whom they have been parenting since his birth six months ago. If that sounds complicated or confusing, it’s because it is, on account of the fact that Rio was born by surrogate.

At present, under UK law, it is the surrogate that is the child’s legal parent at birth. And, if the surrogate is married or in a civil partnership, their partner will automatically be the child’s second legal parent. This is the case even with full surrogacy (also known as gestational surrogacy), when the eggs of a donor are used and there is therefore no genetic connection between the baby and the surrogate, or when the eggs or sperm (or both) of the intended parents are used so there is a genetic connection with them, as in Stuart and Francis’s case. Essentially, in the eyes of the law, birthing trumps everything – at least initially. Legal parenthood can only be transferred by parental order or adoption after the child is born, meaning that in most cases, those raising the baby have no legally recognised relationship with the child until a parental order is granted.

Technically, intended parents can start this process six weeks after their child is born. In reality, though, it takes a lot longer, and is often expensive, emotionally draining, and involves a lot of time as well as admin. It can also raise a whole host of issues if the child has any kind of medical problem or emergency in the intervening months, while the surrogate remains the legal mother and is therefore legally responsible while not being the baby’s primary carer – or, in some cases, their genetic relative.

In the video Stuart and Francis posted to their YouTube channel last September – titled “Emotional journey to be our son’s legal dads” – their tearful moment comes after attending their third hearing in six months. It is hardly surprising that Francis declares the process makes “you always feel like you’ve done something wrong”, because, by the sounds of it, the whole ordeal was Kafkaesque.

First, a judge told them the court needed to see Rio during the proceedings. Then a different judge said she didn’t usually allow children in the courtroom. The first hearing said the court had all of the surrogate’s consent forms, then the second said it didn’t. Most frustratingly perhaps, the second hearing refused to grant Stuart and Francis the parental order until they provided a DNA test, despite the couple having submitted numerous legal and medical documents proving their genetic connection to Rio. Gay couples do not usually have to provide DNA evidence, Stuart protests in the video. It is clear that the hurdles they have to cross to be recognised as their son’s parents trouble him. “If that DNA test came back and it somehow turned out that we weren’t the father,” Stuart asks, “what would happen to Rio?”

While this is a purely hypothetical question in Stuart and Francis’s case, as one of them was the sperm donor, it is also a serious one, which goes to the heart of the uncertainty created by current surrogacy laws. If the surrogate remains the legal parent until the intended parents have satisfied every court requirement, what happens if the goalposts keep shifting, or if the court isn’t satisfied? “Does Rio go into the system? What happens? You’ve got two people who actually want to look after this child, and it all really confused me.”

Before the second of their three hearings, Stuart seems excited. “I cannot wait for Rio to be officially our baby in the eyes of the law,” he says. But underneath his bright anticipation there is clear frustration – and a wish for something else, too. “I can’t wait, actually, for this to never happen again to anyone else,” he says, “I truly believe it’s so unnecessary, and actually we could just be put on the birth certificate at birth, with everyone saying yes. I feel like that should be the law.”

As of last month, it looks like Stuart’s wish might be a few steps closer to coming true. Under major new proposals to reform UK surrogacy laws, couples could become a surrogate child’s legal parents at birth. In a joint report, the Law Commission of England and Wales and the Scottish Law Commission said the existing law, dating back almost 40 years, “does not work in the best interests of any of the people involved”. Their suggested reforms – including that the intended parents no longer have to apply to the courts for a parental order – aim to bring “greater legal certainty, transparency and safeguards against exploitation”, in order to work better for children, surrogates and intended parents.

In an email conversation with me this week, Stuart and Francis are clearly pleased that UK laws might change. “The surrogacy system in the UK is really complicated and outdated,” they stress, “so it has been great to see that the Law Commission has finally announced its proposals for reform, and plans to address some of the challenges hopeful parents face when looking to surrogacy to start their family in the UK.”

They are emphatic that, throughout the entire surrogacy process, securing the parental order was the biggest challenge they faced. Their long wait to be legally recognised as their son’s parents meant that they weren’t legally entitled to make any critical decisions regarding the medical treatment or care of Rio until months after he was born, which, unsurprisingly, “was really scary”. Now, though, they are hopeful that if these reforms are enshrined in law, other intended parents might have an easier time of it than they had – and indeed are anticipating having again soon, as they are now expecting a second child via surrogacy, who they have recently learned will be a girl.

With an increasing number of people choosing to have children via surrogacy – the number of parental orders granted, transferring legal parentage from surrogates, rose from 117 in 2011 to 413 in 2020 – for many it must feel like these proposed reforms are long overdue. Yet perhaps the most important question is whether they go far enough.

Harriet Errington, family partner at Boodle Hatfield (the legal firm that worked with Stuart and Francis during their attempts to be granted their parental order), certainly sees this report as an important “step in the right direction”. “The UK’s surrogacy laws haven’t been properly updated for almost 40 years, and have not kept up with the huge medical advancements we have seen in that time,” she says. She also stresses that many other countries recognise surrogacy much more openly, “including, in some countries, commercial surrogacy”.

In the UK, where commercial surrogacy is unlawful, she says “the key legal challenge with the current system is that you can’t enforce surrogacy arrangements”. This can leave both surrogates and intended parents feeling unprotected and potentially vulnerable. “Interestingly, one of the most common concerns that has been raised by clients I have assisted in the past has been to ensure that the surrogate mother is properly supported,” Errington tells me. “Surrogate mothers take on a huge burden, with potentially life-changing consequences, but very little is required to be done in order to support them – emotionally or financially.”

In her view, these reforms address the primary concerns of many intended parents and surrogate mothers alike. “I anticipate we will see a dramatic increase in surrogacy arrangements in this country once the draft bill is enshrined in law,” she says. Yet she also suggests that “the key question mark that remains is around commercial surrogacy and whether surrogate mothers ought to be paid”. It’s an emotive issue, and one that prompts much heated debate within both the surrogate and legal communities, and among the wider general public.

Two of the researchers currently engaged with debates around surrogacy law and regulation are Dr Elizabeth Chloe Romanis, assistant professor in biolaw at Durham Law School, and Zaina Mahmoud, who is undertaking a PhD that examines surrogates’ lived experiences, with the goal of promoting the health and wellbeing of surrogates and improving legal frameworks around reproductive rights. Mahmoud says her research has shown that surrogates would largely welcome changes that grant legal parenthood and responsibility to intended parents from birth, but are more sceptical and wary when it comes to the question of payment.

“Surrogates were unconvinced by the need for a right to object or a cooling-off period before the baby becomes the legal child of the intended parents,” Mahmoud says, as they view this as unnecessary and as “emerging from a misunderstanding that they wanted to keep the baby”.

Where things get a bit trickier, however, are the joint issues of legal unenforceability and financial compensation. Mahmoud stresses that under current UK laws, which largely rely on friendship agreements between surrogates and intended parents rather than formalised contracts, “surrogates’ vulnerability was heightened in certain contexts, as there was no guarantee that intended parents would act according to surrogates’ expectations”. Intended parents are currently under no legal obligation to compensate surrogates for expenses incurred during pregnancy, for example.

Yet Mahmoud also found that the majority of surrogates in the study expressed strong distaste for commercialised surrogacy, explaining how payments negated their altruism. “They voiced concerns on how payments to surrogates as standard – or even as an option – necessitated safeguards against potential exploitative practices,” Mahmoud says, and highlights that a few also expressed concerns that the introduction of a monetary element “would render surrogacy even less financially accessible for potential intended parents”. Ultimately, Mahmoud emphasises, reforms resulting in even the slightest move towards commercialisation were not supported by the surrogates in the study.

Aside from issues of payment, potential changes to surrogacy laws raise other important questions about parenthood and family. Mahmoud and Romanis recently co-authored a paper, published in the Medical Law Review, on gestation and motherhood, in which they argue “for a better recognition of the differences between gestation and mothering, to promote autonomy and reflect the very different ways families may be formed”.

Like Errington, Romanis also suggests that the proposals outlined by the Law Commission are “a step in the right direction”, because, she explains, “they enable surrogates more freedom, rather than remaining legally responsible for the child for a period of time after birth until a parental order can be granted”. However, she also thinks there are still lots of limitations. “In general, I think we need to think about reforming the law surrounding parenthood more fundamentally, rather than trying to fix the issues that arise specifically in surrogacy arrangements,” Romanis argues. “For example, English law only allows a child to have two parents, and this does not reflect the growing diversity of family forms.”

She also suggests that gendered legal language surrounding parenthood has resulted in the law failing to reflect many families’ lived experiences. “The law recognises only one mother: the person who birthed,” Romanis explains. “This prevents trans men who birth from being recognised as fathers [because UK law defines them as “mothers”]. It prevents recognition of families with two same-sex parents.” Indeed, the whole thing still seems highly gendered and shrouded in biological determinism. Currently, for example, if legal motherhood is abdicated through adoption or parental orders, that child has no legal mother. “The intended parents are vested with legal parenthood,” Romanis and Mahmoud write in their paper, “but their legal status is not as legal mother(s) or legal father(s), but rather as Parent 1 and Parent 2.”

Stuart and Francis’s tears of frustration, as is evident in their hard-won relief at finally being recognised as the parents of their son, did at least end in joy. “Surrogacy is such a gift,” they affirm, “and we are so grateful to be alive at a time in which it is possible to be able to call ourselves dads.” Yet the difficulties they and so many others have faced surely make it impossible not to agree with Romanis that, when it comes to surrogacy and parental law in the UK, “we need a real overhaul”.

This article was first published by The Independent.