Journal

Why we need to reform the archaic law of surrogacy

By on
25

It has remained fundamentally unaltered for over 30 years

Former head of the Family Division of the High Court, Sir James Munby, has called for the amendment to the current law regarding surrogacy payments. He asserts that “society is moving on and the challenge for lawmakers is what steps, if any, we take to accommodate those changes into our legal framework”. Under UK law, women are banned from advertising themselves as surrogates or receiving payment other than to cover ‘reasonable expenses’. However, Munby argues that the reality is a market does exist in the UK as payments are “dressed up as expenses”.

Currently, the legal rules regarding the regulation of surrogacy are contained in the Surrogacy Arrangements Act 1985. Following the Warnock Committee’s investigation, the government created the regulatory framework which “makes it a criminal offence to be commercially involved in the negotiation of surrogacy arrangements, or to be involved in publicising or advertising surrogacy arrangements”. The act, which Professor Michael Freeman, a lecturer at UCL, contends is “an ill-considered and largely irrelevant panic measure” outlines the requirements which need to be established for a parental order to be granted. Once a parental order is granted by the courts, the surrogate mother is no longer the child’s legal guardian and the child will be under the care of the parents who began the surrogacy arrangements. The entire legal process begins after the event of birth not before. However, there has been recent controversy regarding the payment of surrogates.

Want to write for the Legal Cheek Journal?

Find out more

The act does not allow any commercial transaction between the surrogate and the future parents, however it does permit reimbursements for ‘expenses’. However, ‘expenses’ is not defined in statute, so courts have had to determine whether the payments being made are adequate. Customary payments have been held to be between £12,000-£20,000. Yet, courts have authorised payments of other values where they have confirmed ‘this has been in the child’s best interests’. But again, the value of expenses is contestable. As Munby stated, “How is a judge supposed to assess whether the £10,000 paid, for example, is a genuine expense?” There needs to be transparency in the law, setting out the legal boundaries of what can constitute payments. While there has been amendments to legislation regarding other fertility treatments due to scientific and technological advances, “British surrogacy law has remained fundamentally unaltered for 30 years”.

Critics of reforming the law and allowing surrogates to receive payment predominantly assert they wish to avoid exploitation of vulnerable women. This is a legitimate concern. By transforming the current UK surrogacy law based on altruism to a commercially regulated environment, this may incentivise women who need money to become surrogates out of necessity. If the law were to change, additional safeguards would need to be inserted to make sure that this doesn’t happen, and that “women understand the risks and implications of what they are doing and give informed consent”. In the US, commercial surrogacy exists. Surrogacy agencies are legal and surrogates “may be compensated around $40,000 in addition to expenses”.

Society’s attitude has changed since the 1980s, in regards to issues such as IVF, surrogacy and same sex couples for example. The law needs to adapt to the societal change around these issues.

In February this year, the Department for Health gave the Law Commission £150,000 “for a three year project which is expected to lead to a rewriting of the Surrogacy Arrangements Act 1985 and the 2008 Human Fertilisation and Embryology Act.” Being done in conjunction with the Scottish Law Commission, it may be eventually possible that surrogates will be entitled to a payment that isn’t put under the umbrella of ‘expenses’. Again, the pitfalls of this must be advanced, it should never be the intention to put those vulnerable at further risk. However, with well regulated safeguards, it is possible that surrogates be compensated. As Munby acknowledges, “surrogates are amazing women who selflessly give up a year or more of their lives to help someone else have a family”, so why should they not be more adequately compensated and remove the fear of parents that they may not be granted the parental order if they are seen to commercially hire a surrogate.

Emma Diack is a postgraduate student at King’s College London studying medical law. She recently completed her undergraduate law degree at the University of Warwick and has a passion to pursue sectors of law ranging from commercial to family.

Want to write for the Legal Cheek Journal?

Find out more

Please bear in mind that the authors of many Legal Cheek Journal pieces are at the beginning of their career. We'd be grateful if you could keep your comments constructive.

25 Comments

Anonymous

Let’s have a vote on who LC’s hottest contributor is

Anonymous

Adam 😍😍😍😍

Anonymous

HAHAHAHAHAHA

SOMEONE SAID ALEX AND HE DELETED IT FFS CRYING

Anonymous

Actually a whole queue of vicars said so, in what state I won’t say

Anonymous

Well what state are people usually in when they’re discussing how hot someone is?

Anonymous

Tom’s been at the delete button again. He’s crying as Alex won’t let him do any more awkward videos where he can show his guns like he used to with Katie.

Anonymous

Emma Diack by a country mile.

Anonymous

Aishah Hussain, hands down.

JDP

Down where?

Anonymous

Down adam’s pants while he continues his doomed (but oh so stereotypical teenage heart throb) denial of his gay longings

Anonymous

I don’t see why there should be a policy argument against this on a commercial basis. If a woman wants to offer her services in this way, shy shouldn’t she put a price on it that exceeds merely her expenses?

Anonymous

Unfortunately, our current law only allows for payment of ‘expenses’ meaning that families fear overpayment to surrogates in case judges decide not to grant them the parental order following the child’s birth. The fear of creating a commercial system is that we may be attracting vulnerable women to engage in surrogacy when they do not wish to, but need to. However, I agree, a women should be able to offer her services as a surrogate if she wishes. But we need to ensure that there is a correct framework in place so that we don’t create unnecessary vulnerabilities.

Anonymous

Quite right too. Perhaps you would be interested in signing my petition for the mandatory covering of the legs of all stools, tables, chairs and pianos, lest they should arouse impure thoughts among our youth.

Sarah

I don’t mind if people think I’m a dinosaur, but it’s absolutely tragic that a baby boy or girl can be raised by two blokes and never knowing their mother.

Furthermore, it completely objectifies women and reduces them to a womb.

The whole practice should be outlawed.

Gary

Barry mate, we spoke about this. You can’t be saying sh*t like this online. Your wife is a f*cking governer at the local school – it is her reputation on the line and not just yours.

Barry from the local

Fuck off Gary you homo.

An anonymous barrister

Totally agree.

Adoption is one thing (I have no problem with gay couples adopting) but to bring a child into the world with the express intention that it will not have a mother is monstrous and un-natural in my opinion.

An opinion that I would never declare openly because the diversity police would have my head.

Anonymous

Exactly.

Also, if you normalise these things, our poor children’s generation will know no better.

There is a boy at my son’s school that cross dresses and says he wanted surgery to become a woman. He is 12. I have no doubt that his gay “parents” may have had some influence on him.

Woke Bro

Using the phrase “beyond the pale” is racist.

Learn your history, ignoramus.

Anonymous

I find it reeeaally hard to see how a woman could do this for money and not be in some way exploited. It’s just not an option anyone would choose unless they were desperate. I wonder if any of those commenting above saying this should be legal have ever been pregnant? If you haven’t been, it’s easy to underestimate what a powerful and intimate experience it is.

Anonymous

Well that is a bit f*cking sexist.

Anonymous

I think one needs to consider how much pension equity and private equity is invested in the public and private hospital infrastructure, the machinery, the synthetics, the drugs, the IT for the databases and so on for the current state of play.
We also need to know when the majority of those funds are due to yield.

I say this because surrogacy has not yet become a business that can receive multi
million pound investments with the growth forecasts required to meet equity and pension gearing, but it has the hallmarks of being a sector that could.

If we permit the expansion of surrogacy too early we risk jeopardising the return rates of the funds invested in the status quo. Adults may choose a local surrogate as route one, rather than the current elongated route to child adoption.
This is particularly so as an increase in publicity and supply will drive prices down, not up, unless financiers are permitted by politicians to dictate the new framework.

Let the lobbyists for private equity and pension funds have their delay while new gearing models are calculated, and let the surrogacy vehicle be created accordingly, for the sake of the economy- has to be the party line on this.

Contrary views about motherhood can be tolerated until further notice as they are unlikely to gain traction in 2018. This can be reviewed if circumstances change.

Anonymous

I disagree.

No doubt you feel you now have the right to physically attack me from the safety of your safe space?

ash

Ive been a surrogate biggest mistake I ever made. Pregnancy almost killed me I had no rights it was all about the parents and what they wanted

Linder

The law needs to be reformed but allowing payments for surrogacy is not what surrogates want, only those who will profit from it. Lets keep the system altruistic with the correct payments from birth.

Join the conversation

Related Stories