Despite surrogacy being generally accepted as being a legitimate means of reproduction for those who wouldn’t otherwise be able to have children, it still tends to generate strong feelings, largely due to misunderstanding or misinterpretation of the laws which surround the practice.
This article will provide a relatively brief summation of the situation regarding surrogacy both in England and Wales and in various other parts of the world, with particular reference to the legal framework which currently exists and how that framework might change and evolve in the future.
We draw extensively from the recently published paper ‘The future of surrogacy: a review of current global trends and national landscapes’, which was written by Kirsty Horsey. This is a particularly useful resource as it is based on a deep dive into the academic literature published on the subject in the form of peer-reviewed papers, mostly dating from 2010 onwards, combined with a trawl of news reports, official policy papers and actual surrogacy cases.
Surrogacy Defined
Surrogacy enables couples who are infertile or have a long history of recurrent miscarriage to have families and can also provide a route to family formation for same sex couples, single people or women with medical conditions which make it impossible to carry a child.
In simple terms, surrogacy involves a woman carrying a baby to term and giving birth with the intention of giving that baby to the intended parents (IPs) on the basis of an agreement entered into before conception.
The ‘mechanics of the surrogacy process can involve IVF performed in a fertility clinic, using fresh or frozen embryo transfer, or a donor egg or donor sperm. In these cases, there is no genetic relation between the surrogate and the child.
Although IVF surrogacy of this kind is currently the most common form, there are still some cases in which what might be called ‘traditional’ surrogacy is practiced. In such instances, the surrogate is inseminated, or self-inseminates, with the sperm of the intended father, and will therefore have a genetic relation to the baby being carried.
Surrogacy and the Law in England and Wales
England and Wales was the first jurisdiction in the world to regulate surrogacy, in the 1980s, and even today it is amongst a minority of countries to have a legal framework in place.
The other distinctive feature of the English and Welsh framework for surrogacy is that it is ‘altruistic’ in nature, with surrogacy receiving government support as a form of family building, and also that, at the time of writing, England and Wales is not a destination for IPs from other countries.
Despite the well-established nature of the surrogacy framework in England and Wales, it is still one of several countries in which attempts are currently being made to modernise the law. The proposals for reform were published by the Law Commission in March 2023, as there has long been a general belief that many of English and Welsh laws on surrogacy – having been in place for more than 30 years ago – are no longer fit for purpose. Plus, that any changes needed have happened in a piecemeal fashion via case law rather than comprehensive reform being introduced in the best interests of IPs, surrogates and, most important of all, children.
The proposed reforms involved the development of a new surrogacy pathway which would enable the IPs to be recognised as the legal parents of the child from birth and to be named on the first birth certificate.
This is in contrast to current law, which imposes a sometimes-significant delay before the IPs can become legal parents, despite the fact that the child has been living with them from birth.
The proposal is for the pathway to be overseen by new non-profit making organisations known as ‘regulated surrogacy organisations’. These will be tasked with ensuring that the following criteria are met:
- The IPs must be a minimum of 18 years old
- The intended surrogate must be a minimum of 21 years old
- At least one of the IPs must have a genetic link to the child
- If there are two IPs they must be married, in a civil partnership or in an enduring family relationship
- At least one of the IPs, together with the surrogate, must meet a ‘test of connection’, which in practice means that they must be domiciled or habitually resident in England or Wales
Other steps which are proposed as part of the new surrogacy pathway include:
- Medical checks being carried out on the IPs and the surrogate
- Enhanced criminal record checks to be carried out on the surrogate and any partner (spouse, civil partner or cohabitee) and on the IPs
- IPs and surrogates must access independent legal advice and counselling on the implications of surrogacy
- The parties involved need to enter into a surrogacy agreement, which must be signed off by a regulated surrogacy organisation
- An assessment of the welfare of the child to be born via surrogacy to be carried out pre-conception
As mentioned above, the IPs would be recognised as legal parents of the child at birth, and will be named as such on the first birth certificate, but only if the necessary steps have been followed.
Although the formal consent of the surrogate for the IPs to be named as parents wouldn’t be required, the surrogate would still be able to withdraw their consent, from the start of the surrogacy arrangement to as long as six weeks after the child has been born.
If consent was to be withdrawn in this way after conception but prior to birth, then the surrogate would be recognised as the legal parent at birth, and the IPs would have to apply to the court for a parental order to obtain legal parenthood.
If consent were withdrawn during the six weeks following the birth, then the IPs would still be recognised as the legal parents and the surrogate would need to apply for a parental order if they wish to dispute this.
The main thrust of the proposed pathway in this respect is that the current system – under which courts can’t grant a parental order if the surrogate doesn’t give their full, free and unconditional consent, even if such an order would be in the best interests of the child – should be relaxed, so that the court can disregard the surrogates consent if doing so is in the best interests of the welfare of the child.
Surrogacy and Payments in England and Wales
The proposed pathway also covers the issue of payments, proposing a statutory declaration be made by the IPs between six and twelve weeks after the birth. Permitted payments will include the following:
- Insurance for the surrogate
- Travel and accommodation costs
- Purchase of pregnancy related items
- Modest gifts for the surrogate
- Costs related to medical treatment and wellbeing
- Any dietary requirements related to the pregnancy
- The cost of domestic support for the surrogate and of a modest recuperative holiday for the surrogate and their family
The fact that no specific amounts are given for the permissible payments indicates a degree of flexibility within the framework, but payments will still be prohibited for general living expenses, for the gestational services and intended as compensatory payments.
IPs and surrogates who don’t wish to follow the new pathway will still be able to access surrogacy through the parental order system. While this system generally mirrors the minimum requirements of the pathway in terms of things like age restrictions and the requirement for a genetic link between at least one of the IPs and the child, there will be no requirement for the surrogate to have a strong connection with England or Wales, and this means it will still be possible for IPs in England and Wales to apply for a parental order following international surrogacy.
International Surrogacy
Whilst it is positive that the revised parental order system would allow for parental orders in international arrangements and would largely reflect the minimum requirements of the new pathway, there had been some hopes that the proposals might include automatic recognition for children born through international surrogacy, particularly given that over half of the parental orders made each year are for children born through international surrogacy.
However, it does seem likely that the new pathway would encourage more IPs to opt for domestic surrogacy rather than the international option.
The caveat which has to be applied to this line of thinking, and which is highlighted in Kirsty Horsey’s report is that, even with the pathway in place, the number of surrogates in England and Wales will still be insufficient to meet demand, and that the stipulations of the pathway will make surrogacy more expensive, and thus inaccessible to many IPs, who may therefore opt to access lower cost overseas destinations, making it more likely that surrogates and IPs are exploited.
International Surrogacy and Exploitation
This risk of exploitation can be traced back to the fact that many international surrogacy destinations operate commercial surrogacy, meaning profit-making is a part of the process, with, usually, the surrogate being paid for their services as well as bodies such as agencies and brokers who act as facilitators.
In some parts of the world, such as New York, commercial surrogacy operates within a framework of safeguards, but in others the commercial sector has emerged precisely because of a lack of regulation, and this opens up a raft of ethical concerns. Namely that paying a surrogate to have a baby, particularly in poorer parts of the world, increases the risk of the surrogate being exploited by wealthier IPs, or by the intermediate agencies, which will often charge exorbitant fees from IPs but only pass a small amount of the money on to the surrogate.
Kirsty Horsey’s report points out that the ideal of an international framework for surrogacy is unlikely to appear any time soon, if ever, given the wide variety of attitudes in different parts of the world on the basis of culture and religion. It also quotes Growing Families, an international surrogacy support organisation which is based in Australia, but which offers support and advice to IPs from around the world, stating that:
‘There are countries [where IPs should proceed] with extreme caution. These countries include Guatemala, Kenya, and North Cyprus. As these countries offer unregulated programs you may run into issues such as poor medical services, lack of laws, poor surrogate care, and expose yourself to child-trafficking offences’ (Growing Families, 2023b).
The international market for surrogacy tends to move in waves, with countries such as India and Thailand becoming massively popular and hugely profitable destinations in the late 2000s before the services were shut down, in part, at least, in response to concerns about the treatment of surrogates by clinics and agencies.
Many of the IVF surrogacy clinics in India and Thailand simply relocated in other territories such as Nepal, Cambodia and Kenya. Meanwhile, those territories in which surrogacy is well regulated, altruistic and open to IPs from other countries, such as Canada, experience excess demand, driving up waiting lists.
At the time of writing, the countries which offer a regulated version of surrogacy include England and Wales, Canada, Israel, South Africa, Greece, some states in the US and some territories in Australia. Others have laws prohibiting it entirely, such as, France, Germany, Italy, Switzerland, Spain and the People’s Republic of China, while some countries outlaw certain aspects, including Denmark, the Netherlands, Portugal, Czech Republic, Brazil, Uruguay, Russia and India.
While many countries around the world appear to be shifting toward regulating surrogacy to some degree or other, it remains the fact that the surrogacy pathway as set out in the Law Commission report would, if adopted to any significant degree, place England and Wales at the vanguard of delivering safe, ethical surrogacy services.
This alone won’t be enough to stop a percentage of IPs from seeking international surrogacy in territories which, by definition, have less rigorous frameworks in place, or treat surrogacy as a money-making opportunity above all else.
It is estimated that the global surrogacy industry had a value of $14 billion in 2022, rising to $17.9 billion in 2023, and this figure is expected to climb as high as $139 billion by 2032.
Factors thought to be driving this increase include increasing levels of infertility, increasing numbers of same sex couples hoping to have a family, a decline in the number of children available for adoption, and the advancements in medical technology which make IVF surrogacy safer and more likely to succeed. From time to time, the endorsement of celebrities such as Elton John, Tyra Banks and Cristiano Ronaldo may also play a role.
While the practice of surrogacy continues to grow at such a pace the best hope for it being delivered in a manner which treats all parties ethically is for the kind of framework being developed in England and Wales to extend to other territories. In that way, the ethical, practical and legal issues currently faced by IPs from England and Wales driven or opting to seek surrogacy elsewhere will probably, over time, become less onerous.
