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23 NOV 2015

Dispelling myths about surrogacy in the UK and the need for reform: report of the Surrogacy UK Working Group on surrogacy law reform

Dispelling myths about surrogacy in the UK and the need for reform: report of the Surrogacy UK Working Group on surrogacy law reform
Louisa Ghevaert, Partner and Head of Fertility and Parenting at Michelmores LLP

The Report of the Surrogacy UK Working Group on Surrogacy Law Reform in November 2015 shines a light on the reality of surrogacy in the UK. It dispels myths about surrogacy which have influenced policy and debate and finds the time is right for reform because law regulating surrogacy in the UK is 30 years old and therefore out of date. The report also makes recommendations on how to achieve surrogacy law reform in the UK.

Surrogacy myths

It is difficult to find accurate data about surrogacy arrangements entered into by intended parents from the UK. This is not surprising given the lack of centralised information about surrogacy. In addition, different government agencies and organisations record different parts of the process.

Over the summer of 2015, Surrogacy UK (SUK) therefore undertook its own survey on surrogacy in the UK. It received 434 responses, including responses from 111 surrogates and 206 intended parents. This survey is believed to be the largest ever UK survey of surrogates, intended parents and other interested parties.

The Report analysed the results of SUK's survey on surrogacy in the UK. It also interrogated information about surrogacy from a range of difference sources, including the Ministry of Justice (MOJ), Her Majesty's Passport Office (HMPO) and Cafcass. 

The findings of the Report do not support a developing perception that international surrogacy has become commonplace for intended parents from the UK. MOJ data states that overseas surrogacy makes up an average of 13-14 per cent of UK parental orders granted with known place of birth origins. However, there is no requirement to apply for a parental order and there are restrictions on who may apply for a parental order. The numbers of children born abroad to surrogates may be somewhat higher than 13-14 per cent, but precise figures are unknown not least because data from HMPO does not record the actual number of children born abroad to foreign surrogates being brought into the UK. The number of overseas passport applications made for surrogate born children is an unknown percentage of the 150-200 overseas passport applications received annually by HMPO.

Furthermore, the Report found there is an overwhelming consensus amongst respondents to the SUK survey that surrogacy in the UK should remain altruistic. The SUK survey found that 27.1 per cent of respondent surrogates received less than £10,000 and the mean amount was £10,859, representing reimbursement of expenses.

Importantly, 75 per cent of respondents thought surrogacy law in the UK needs to be reformed. Sixty-five per cent of respondent surrogates said intended parents should be the legal parents of the surrogate born child at birth, and 72 per cent of surrogate respondents said a surrogate should not be able to change her mind about handing the baby over to the intended parents at birth. Reasons for reform by those that replied to the survey included: the law is out of date, the current system does not treat the right people as parents, the process in the UK should be made easier and more transparent, and the system should better reflect the realities of surrogacy in the UK.

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The Report found that the vast majority of intended parents who work with a UK surrogate mother have/will apply for a parental order. In addition, a greater proportion of intended parents who undertake surrogacy abroad are ineligible or unlikely to apply for a parental order. Whilst parental order applications are rising, up from 138 in the year April 2011–March 2012 to 241 in April 2014–March 2015, the numbers of those undertaking surrogacy in the UK is small.

There is, therefore, no evidence of a 'ticking time bomb'; there are not large numbers of people not applying for a parental order for their surrogate born children.

Overall, the Report made a range of findings that can be summed up as follows:

  • The vast majority of surrogacy in the UK is domestic and altruistic.
  • The number of intended parents who cross international borders for surrogacy from the UK is small but increasing.
  • There is an overwhelming consensus that surrogacy law in the UK should be reformed.

Reform of surrogacy law

The Report makes recommendations for reform of surrogacy law in the UK which guards the principle of altruistic surrogacy and improves the current system. The existing model is not perfect, but it does provide a workable basis from which improvements can be made, and there are aspects of the existing law which should be retained. The retention of altruistic surrogacy in the UK is also aligned with public policy governing other areas of assisted reproduction in the UK, including gamete donation.

Recommendations for reform include:

  • Parental orders should be pre-authorised so that legal parenthood is conferred on intended parents at birth.
  • Parental orders should be available to single intended parents.
  • Parental orders should be available to intended parents conceiving a child with donor eggs and donor sperm (known as double donation).
  • The removal of the six month statutory time limit for issue of a parental order application following the birth of a surrogate born child.
  • The rules on surrogacy-related advertising and the criminalisation of this should be reviewed in the context of non-profit organisations.
  • Parental order/surrogacy birth data should be centrally collected and published annually.

The report also recommends the following actions for government to improve awareness and understanding about surrogacy in the UK:

  • The Department of Health, in consultation with the surrogacy community, should draft and publish a 'legal pathway' document for IPs and surrogates.
  • The Department of Health should produce guidance for professionals, written in consultation with the surrogacy community for midwives and hospitals, Children and Family Court Advisory and Support Service (Cafcass) and clinics.
  • Surrogacy should be included in schools' sex and relationships education (SRE) classroom curriculum linked to awareness of (in)fertility and family building options.
Reform of surrogacy law in the UK matters because these are real children and families being created through surrogacy. Existing law creates uncertainty over legal parenthood and this is not in the best interests of surrogate born children and families.

The full Surrogacy in the UK report is available to view and download here.
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