CHAPTER TWO – WHAT IS SURROGACY?

1. The term surrogacy often conjures a variety of interpretations of what it might entail. Stories of celebrity couples often end up in the media and perhaps paint a glamorised image of the process. However, in reality the concept of surrogacy dates back to biblical times when Abraham and his wife Sarah, unable to conceive, enlisted the assistance of their handmaid, Hagar, to be their surrogate.
   
2. Surrogacy is the process whereby a woman (the surrogate) becomes pregnant with a child and following birth the child is given to another family (the intended parent(s)). The surrogate may or may not be genetically related to the child. In this jurisdiction, at birth the surrogate is always the child’s legal mother and the intended parents only become legal parents until a court awards them a parental order.

3. In the joint consultation paper ‘Building families though surrogacy: a new law’ by the Law Commission and the Scottish Law Commission, defined surrogacy as:

   “the practice of a woman becoming pregnant with a child that may, or may not, be genetically related to her, carrying the child, and giving birth to the child for another family (who we refer to as the “intended parents”). Under the current UK law, the surrogate is the child’s legal mother at birth, and the intended parents must apply for a parental order after the birth of the child to become the legal parents of the child”¹

4. There has been a steady rise in the use of surrogacy as a route to parenthood, beyond what is seen in newspapers and social media. The Law Commission’s wish to examine the current law (to which this book relates, as at October 2020) is illustrative of how it has come in to the ‘mainstream’ and viewed as a legitimate route to parenthood.

5. Lady Hale, the former President of the Supreme Court in one of her last cases described the law in relation to surrogacy as being “fragmented and in some ways obscure”.² The “fragmented” and “obscure” nature of surrogacy means that it is difficult to identify the number of children born via surrogacy each year in this jurisdiction. Equally, it is difficult to ascertain the number of children born via surrogacy in another jurisdiction to intended parents who return to live in this jurisdiction with their child.

6. The only way in which the number of people using surrogacy can be captured accurately, is by looking at the number of parental orders made each year. Parental orders, a type of Family Court order, will form a large focus of this book. They are the bespoke court order that a Family Court judge will make that recognises the intended parents as the child’s parents and extinguishes the surrogate’s status as a parent (and that of her husband’s if she is married). Parental orders will be discussed in greater detail in Chapter 4.

7. Whilst there are profound and significant legal implications of a parental order being made, to both the intended parent(s) and the child, there is no legal obligation to acquire such an order. This makes the task identifying the total number of children born via surrogacy difficult to ascertain and the reasons why people might not apply for a parental order may vary (e.g. lack of knowledge, cost or not being eligible under the current statutory criteria). However, the most recent statistics published by the Ministry of Justice in June 2020 showed that in 2012, 184 parental orders were made in England and Wales, compared to 374 and 440 in 2018 and 2019 respectively. ³ These statistics show a steady rate of increase and a willingness for courts to make those orders where the criteria are met.

8. By section 33 of the HFEA 2008, the starting point is that the woman who gives birth to the child is always the child’s legal mother when the child is born. As Lady Hale observed in Whittington Hospital NHS Trust v XX [2020] UKSC 14, “This means that she has (in English law) parental responsibility or (in Scots law) parental responsibilities and rights. A person who has parental responsibility for a child may not surrender or transfer any part of that responsibility to another (Children Act 1989, section 2(9)).”⁴

9. The consequence is that unless and until an order is made that extinguishes the surrogate’s legal relationship, the child will have a lasting legal connection with the surrogate and not form part of the family of the intended parent(s). In many ways the purpose of a parental order bears striking similarities to that of an adoption order, in that it extinguishes permanently, the legal relationship between a birth parent and vests it in the adoptive parent(s) so that the child is treated as having been born to the adoptive parents. However, there is a subtle, but significant difference in that adoption orders operate in a different way in that they are bespoke Family Court orders that are intended to replace legal parenthood, whereas a parental order is intended to reflect legal parenthood.

10. The effect is that the parental order therefore treats the intended parent(s) as though the child was born to them from birth. Once the intended parent(s) is recognised as a legal parent, that can only be removed by the making of an adoption order or revocation of the parental order. In G v G (parental order: revocation) [2012] EWHC 1979 (Fam) which concerned an application by the intended father to revoke a parental order on the grounds of alleged procedural defects and concealment of the intended mother’s intention to separate from the intended father. The court refused the application confirming that that there was no statutory power to set aside a parental order and that principles governing revocation should be guided by the authorities on revoking adoption orders.

    The historical context of surrogacy in England and Wales

11. Prior to the 1980s there was no legal framework for surrogacy in the UK. There is therefore no quantitative data to assess how prevalent it was, other than anecdotal evidence. But from about the mid 1970s, advancements in medical science facilitated a change in how families were formed and individuals previously excluded from parenthood were able to become parents.

12. The case of In re C (A Minor) (Wardship: Surrogacy) [1985] FLR 846, known as the ‘baby Cotton’ case in the 1980s led to the Surrogacy Arrangements Act 1985. The surrogate agreed to have a child for a couple who lived abroad on a commercial basis. This was the first known case of commercial surrogacy in this jurisdiction. The case caused quite a political and moral storm and the child was made the subject of wardship proceedings in the High Court to determine where the child should live, and for some time the child was placed in foster care. Those proceedings concluded on welfare grounds that the child should be placed in the care of the intended parents and they were given permission to remove the child from England to travel to their home country.

13. The media furore that ensued from Re C led to the Surrogacy Arrangements Act 1985. Under this Act, commercial surrogacy is illegal in the UK and it is a criminal offence under the same Act to advertise either for a surrogate or to be a surrogate.⁵ It is also a criminal offence to negotiate a surrogacy arrangement on a commercial basis.⁶ The Act remains in force today. As well as prohibiting commercial surrogacy, one of the key aspects of the Act is that surrogacy arrangements in this jurisdiction are unenforceable, i.e. where a party enters into a surrogacy arrangement and there is a dispute about where the child should live, the parties to the arrangement cannot be compelled to perform or carry out their side of the arrangement⁷. In such circumstances, where there is a dispute post birth between intended parents and a surrogate, those cases are determined on welfare, i.e. what is in the child’s best interests.⁸

14. Following the birth of Louise Brown in Oldham in 1978 (the first person in the world to be born as a result of in vitro fertilisation (IVF)), The Report of the Committee of Inquiry into Human Fertilisation and Embryology (1984) (headed by Baroness Warnock, known as the ‘Warnock Report’) was published.

15. The concept of egg donation was introduced in 1983 which allowed for gestational surrogacy, where an embryo is created by IVF using the egg of the intended mother or donor egg and the sperm of the intended father or donor sperm which is then implanted in the surrogate. The corollary is that the surrogate is a “gestational carrier” but bears no genetic relationship to the child. In contrast to gestational surrogacy where the surrogate has no genetic link to the child, with traditional surrogacy, the surrogate’s own eggs are used and she therefore has a genetic link to the child.

16. The Warnock Committee was unable to secure a consensus on surrogacy and the committee characterised the task they had as being one of the “most difficult problems” that they had encountered”.⁹ The report concluded that surrogacy arrangements, whether on altruistic or commercial grounds were “liable to moral objection”.¹⁰ The general tenor of their recommendations was the prohibition and prevention of commercial surrogacy on the basis that such arrangements were likely to enter the realms of exploitation where there were financial interests were concerned. The extent of the moral and legal ambivalence towards surrogacy at the time was perhaps best illustrated by the reluctance to allow non-profit making surrogacy services that would the subject of regulation as that would be seen to be encouraging surrogacy.

17. The Warnock Committee report eventually paved the way for the Human Fertilisation and Embryology Act 1990 (‘HFEA 1990’), which provided a legal framework surrogacy in the UK on an altruistic basis – i.e. it permitted reasonable expenses to be paid to the surrogate, with commercial surrogacy remaining prohibited under the Surrogacy Arrangements Act 1985. Under the HFEA 1990 only married heterosexual couples were able to apply for parental orders, the bespoke court order required for child who is born as a result of a surrogacy arrangement to allow the intended parent(s) to be recognised as the child’s legal parent(s) in this jurisdiction.

18. The legislative framework that was shaped by the Warnock Committee adopted what in many ways is now considered to be a paternalistic approach to protect the surrogate from the risk of exploitation. However, decades later, Baroness Warnock considered that the law in relation to surrogacy was too protective of the surrogate, based on the assumption that the surrogate was most at risk of exploitation.¹¹

19. Following the Warnock Report in the 1980s, The Brazier Report, chaired by legal academic Professor Margaret Brazier consider the question of surrogacy again in 1997 having been invited to consider it by the new Labour Administration. The report had three key areas upon which to address: i) whether payments, including expenses, should continue to be made to surrogates; (ii) whether a recognised body/bodies should regulate surrogacy arrangements; and ii) whether any changes were required in the Surrogacy Arrangements Act 1985 and/or (the then) Human Fertilisation and Embryology Act 1990.¹²

20. Braizer rejected calls to allow a surrogate to acquire any financial benefit from a surrogacy arrangement and preferred maintaining the principle that payments to a surrogate should be in relation to expenses arising directly from the pregnancy. Perhaps something that now seems extreme, the Brazier report recommended that the court’s power to retrospectively authorise excessive payments should be removed which would render such intended parents ineligible to apply for a parental order. Overall the Braizer Report favoured a new surrogacy legislation to consolidate their recommendations. The report was published in October 1998 but was never subsequently implemented and it is unclear whether the relevant government departments responded to the proposals.

21. The statutory framework that originated from the 1980s remained in place until reform came in the way of the HFEA 2008. Under this new act, the availability of parental orders was extended to same sex couples (in a civil partnership – or married following the Marriage (Same Sex Couples) Act 2013) or partners (whether a same sex couple or heterosexual couple) who are in an enduring family relationship. That provision came into force in April 2010. Those reforms fell short of allowing parental orders for single people.

22. However, In the matter of Z (a child) (No 2) [2016] EWHC 1191 (Fam), a human rights case where a single applicant sought a declaration if incompatibly that the statutory framework that only allowed couples to apply for parental orders was a breach of his rights guaranteed by the European Convention on Human Rights (the same was also argued on behalf of the child). The High Court made the declaration sought and the government changed the law to allow single people with a genetic relationship to the child to apply to for parental orders.¹³

23. The law in relation to surrogacy is complex and has seen many changes to it over last decade. After much lobbying and many reported cases, the Law Commission for England and Wales confirmed on 4 May 2018 that the law relating to surrogacy was going to be reviewed. The Law Commission, the statutory independent body created in 1965 to keep the law of England and Wales under review and to recommend reform where it is needed. The aim of the Commission is to ensure that the law is: fair, modern, simple and cost effective.

24. The Law Commission has been keen to acknowledge that the law created over 30 years ago is not fit for purpose and that the Law Commission was keen to examine to what extent the law could be updated to ensure it reflected societal change and was for purpose.

25. It is clear that there has been something of a paradigm shift in terms of societal attitudes towards surrogacy since the 1980s when laws were first passed. Recent debates in the House of Lords regarding surrogacy legislation reflect this, with law makers observing that there has been a struggle that “surrogacy policy and legislation are facing to keep pace with 21^st – century attitudes and lifestyles” and that there is recognition of the “value of surrogacy as a means of helping to create new families for a range of people who might not otherwise be able to have their own children.”¹⁴

    Where do people go?

26. Notwithstanding the statutory provisions that permit altruistic surrogacy in the UK, there is often a perception amongst intended parents that undertaking surrogacy in the UK might be “risky” because of the way in which the law operates, means that the surrogate is always regarded as the legal mother unless and until a parental order is made which engenders a lack of security and uncertainty. In reality, such disputes are rare however it is compounded with the view that many intended parents feel there is a lack of certainty that they will be matched with a surrogate, with an immeasurable timescale.¹⁵ Intended parents therefore often go abroad to countries where they consider that there is greater certainty around their status as parents to a child.

27. It is not however, always so straightforward. Different countries have varying standards that are applied to surrogacy practices. In countries where there is no legal framework for children who are born as a result of surrogacy arrangements, intended parents should exercise extreme caution. In the last decade there have been a number of cases that have caught the media attention that has subsequently led to surrogacy in that jurisdiction being prohibited.¹⁶

    Conclusion

28. Whilst surrogacy is permitted in this jurisdiction, the statutory framework remains one that was largely informed by what was considered culturally and morally acceptable in the 1980s. There has been some reform in the way of the HFEA 2008, however the Law Commission’s interest in the area of surrogacy law reform suggests that it is likely that there will be further changes to the law related to surrogacy at some point in the 2020s to bring the law up to date with contemporary views of society generally.

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