Last Friday, 19 July 2019, I attended The Law Commission’s surrogacy consultation event at Exeter University “Building families through surrogacy: a new law”. The Law Commission explained its proposals for surrogacy law reform and its new pathway to legal parenthood for surrogate born children. It also invited feedback on a wide range of issues raised by surrogacy.
It was interesting to hear first-hand from The Law Commission and I was immediately struck by just how far attitudes and approaches to surrogacy and family building have evolved in the UK over the last 10 years. When I litigated the first international commercial surrogacy case involving British intended parents through the English High Court in 2008, X & Y (foreign surrogacy) 2008, there was limited information, understanding and acceptance of surrogacy in the UK.
Back in 2008, things were very different. Not-for-profit surrogacy organizations had not yet been formally legalized in the UK. The welfare of the surrogate born child had not yet been enshrined in law as the paramount consideration of the English Family Court and welfare considerations sat uncomfortably alongside UK public policy restrictions against commercial surrogacy. Only married heterosexual couples could obtain parental orders for their surrogate born child. Equality legislation had not yet been introduced in the UK widening access to the parental order regime for unmarried heterosexual and same-sex couples, single people or enabling two mums and two dads on a child’s British birth certificate. Furthermore, celebrity endorsement of surrogacy had not yet hit public consciousness and it was a time before the likes of Elton John, Nicole Kidman and Sarah Jessica Parker had built their families through surrogacy.
It was positive to hear The Law Commission’s firmly held view and proposal that there should be independent legal advice for both intended parents and surrogates under the new surrogacy law pathway. It is high time that law and policy governing surrogacy and fertility treatment in the UK adopts a truly multi-disciplinary approach that fully recognises and encompasses the important benefits and protections provided by independent legal advice.
The Law Commission’s proposal to remove the current requirement for a genetic link between the intended parent/s and the surrogate born child also generated lively debate about the character and nature of surrogacy and what distinguishes it from adoption. There is no getting away from the fact that the face of adoption in the UK has changed significantly over the last thirty to forty years, with far fewer babies available for adoption and more older children with complex histories and needs. The removal of the genetic link would widen access to surrogacy and enable more people to have a baby. It also got me thinking about the wider implications and whether this would lead to increased demand for embryo donation in the UK and a shift in emphasis and understanding about the role of epigenetics and a step-change in the debate around ‘nature and nurture of children’.
I was also interested to hear debate around The Law Commission’s proposals to enhance information rights for surrogate born individuals through a new national surrogacy register and by closing the current loophole which prevents them from accessing their original birth certificates (unlike adopted children). Whilst this would enable surrogate born individuals to independently access details of their genetic origins and surrogate it did raise some important points in my mind around birth registration. If birth certificates in surrogacy cases were to make reference to surrogacy this could create very real cultural, religious and security issues for some intended parents and surrogates and not serve the best interests of their surrogate born children. It could also restrict access to surrogacy under the new proposed pathway for these groups and lead to them adopting other surrogacy models.
The Law Commission’s consultation on surrogacy closes on 27 September 2019 and it plans to make its final recommendations for law reform accompanied by draft legislation in 2021. The landscape is already very different from that in 2008. We will undoubtedly continue to see rapid changes over the next few years as we increasingly embrace ever-evolving digital, scientific and medical technologies that will continue to inform and shape our lives and approaches to family building. As such, it will be interesting to see the impact of developments in womb transplants, ovarian tissue freezing, egg-freezing, genetic testing and personalised genomic medicine and how this will influence our thinking and approach to conception and surrogacy practices and law and policy in the years ahead.