Surrogacy – an ancient concept that can be found across history. The earliest examples are seen in the Bible with Rachel and Bilah, and in Hindu Mythology with Rohini and Balram. However, this method of family creation is actually in relative infancy in modern law. Riddled with grey areas, controversies and legal loopholes, this is one of the more complex areas of fertility and reproduction. The Law Commission recently proposed a set of reforms known as the ‘New Pathway’ to attempt to deal with some of the problems with surrogacy law after acknowledging that the current system is no longer fit for purpose, but how effective will these be?
We’ve come a long way since the Bible and Hindu mythology. The first ‘modern’ surrogacy agreement was drafted in 1976, though surrogacy as a concept has been present as far back as the Babylonian period (1894–1595 BC), when it was used to prevent otherwise inevitable divorce due to infertility. The first child born through IVF (In-Vitro Fertilisation, the more commonly used procedure for surrogacy) was born in the Royal Oldham Hospital, Manchester, and the first legally compensated surrogate on the record was Elizabeth Kane from the US around 1980.
Until the 1980s, there was no legal framework for surrogacy in the UK, however this changed in the aftermath of the ‘Baby Cotton’ case: essentially, Kim Cotton was paid £6,500 to carry a child for a Swedish couple, a form of commercial surrogacy. In response to public outcry, the Surrogacy Arrangements Act 1985 was passed to make commercial surrogacy illegal. The problem was, it also made all surrogacy agreements as a whole unenforceable.
This position was altered slightly with the Human Fertilisation and Embryology Act 1990 (HFEA), which made altruistic (charitable) surrogacy agreements legal, with the allowance for reasonable expenses. However, there was no definition of what exactly constituted reasonable expenses, and the agreements themselves were still unenforceable, even if they were altruistic as opposed to commercial. Further amendments were made to the HFEA in 2008 to make parental orders – a crucial part of the surrogacy process – available to both heterosexual, same sex and unmarried couples. This closed an important gap for cohabiting couples, and same sex couples who were unable to get married (gay marriage was not legalised in the UK until 2014).
So surrogacy is a complex area to say the least! Even with all of this history and legislation, there are still several problems. The biggest one is that the child’s parents are not recognised as such legally without a parental order, even if they go through the process of gestational surrogacy (where the surrogate carries the child through IVF, meaning they have no genetic connection to the child). The surrogate retains legal parental status, and this is the case until a parental order is granted, which can take up to a year in some cases. This is obviously not ideal, particularly if the child needs medical treatment in the meanwhile as the parents will not have any right to make decisions.
Another major problem is the concept of ‘reasonable expenses’. Though it is definitely illegal to have a commercial surrogacy agreement, reasonable expenses are permitted, and there are currently no solid guidelines on what this constitutes. Obviously, the concern with commercial agreements is that a person could potentially be paid for their consent, which is ethically wrong. But when the highest approved ‘reasonable expenses’ payment on record was for $56,750, it really begs the question of where the current law draws the line.
The New Pathway aims to tackle these issues by awarding the parents legal status by default, largely removing the concept of parental orders from the process. These would only be required under the new system unless the surrogate withdrew consent, the surrogate and parents decided they wanted a parental order, or if the surrogacy agreement was international (more on that later).
In terms of payments, the new system will create categories that have to be declared in the surrogacy contract when the arrangement is made. Essentially, reasonable expenses will still exist, but their regulation will be a lot more stringent. It will sort out a lot of the grey areas in terms of payments, and prevent potential abuses of surrogate consent. These agreements will be put together by the new concept of Regulated Surrogacy Organisations, making surrogacy more legitimate as a whole.
Unfortunately, the situation is not much better internationally. Unlike adoption, there are no international agreements regulating surrogacy, meaning it is largely up to the individual countries involved in ‘cross border surrogacy arrangements’ (where the intended parents are in one country and have hired a surrogate elsewhere) to regulate agreements as and when they come up. This approach is problematic in several ways, not least because it only really examines the problems once they occur – there has not been a lot of proactive action over the years.
There have been some incredibly controversial cases involving cross border arrangements, as well as non-UK agreements in general. One of the biggest ones was in the United States: a surrogacy contract provision stated that decisions concerning reduction abortion would be made by the intended parent. It seems oddly specific, but the problem was that the surrogate ended up carrying triplets, and the intended father did not want to go through with a high-risk pregnancy. This meant that when the surrogate refused to go through with the abortion, she was in breach of contract.
This case raises serious concerns over reproductive autonomy, as well as the right to freedom of thought; that second one is relevant as the surrogate’s reason for refusing to have an abortion was her pro-life position. In this light, the case does have an air of Handmaid’s Tale to it.
So will the New Pathway actually be effective? Reform is clearly needed, and the New Pathway is a step in the right direction, but there is much more work to do. The only way gaps in the new system can be identified is to test it out; it is not unrealistic to assume that further alterations will need to be made in a few years.
Even if the New Pathway is effective, it is unclear exactly how far it will reach given the international issues with surrogacy. With people already travelling to other jurisdictions if they are unsatisfied with the system in their own country, for surrogacy to truly become legitimate an international effort needs to be made. Yet, again, it is uncertain how an international agreement would work, with so many different perspectives on surrogacy across the world. Perhaps, rather than a ‘New Pathway’, the reforms should be considered the ‘Next Step of Many’.
