It's time to review UK surrogacy law
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Surrogacy is an accepted way of building a family which brings happiness to parents who could not otherwise have children, and to surrogates who want to help change lives and build families. Research shows that children born through surrogacy, inevitably much-wanted, experience no long term difficulties and are thriving.
The UK's surrogacy laws were written in the 1980s. All those involved in modern UK surrogacy recognise that the law is woefully out of date and impractical. Under the current laws:
- The surrogate and her spouse are the legal parents of the baby born
- Surrogacy agreements are unenforceable
- Parents who have children through surrogacy overseas are the legal parents in the country where their child is born but not in the UK
- Parenthood is transferred to the intended parents through a court process which takes up to a year after the birth, and has problematic and outdated criteria
- The law appears to restrict payments to surrogates to 'reasonable expenses' but in reality the courts routinely authorise compensation, and the rules are both confusing and unenforceable
- In the UK it is illegal to advertise, and for surrogacy agencies to make a profit
Against this backdrop, it is not surprising that not enough UK surrogates come forward. The surrogacy framework feels murky, and the law does not support a surrogate’s commitment to carry a child for someone else. The UK's three non-profit surrogacy agencies (which have long supported intended parents and surrogates to ensure smooth arrangements in the absence of a solid legal basis) have had to close their doors to new intended parents due to the shortage of UK surrogates.
Increasing numbers of UK parents are therefore making surrogacy arrangements informally online, and going overseas to countries which offer legally recognised surrogacy. Informal UK arrangements are often frayed with unnecessary tensions and feelings of vulnerability, and people are left to muddle through without any legal process until after the child is born. Internationally, countries where ethical and legal surrogacy is available are too expensive for the majority of parents, while more affordable options are risky with dangers that poor and illiterate surrogates are being exploited. Children born through international surrogacy are not protected, with the law leaving newborns stranded overseas 'stateless and parentless' for months after they are born.
In managing the ever-increasing numbers, the current law is being stretched to breaking point. High Court judges have described the law as 'irreconcilably conflicting' and 'the very antithesis of sensible' and, in case after case, have called for 'better regulation' of surrogacy in the UK. Recently one of the UK's most senior family judges, the President of the Family Division, made a formal declaration of incompatibility under the Human Rights Act, saying that the law discriminated against the children of single parents and breached their human rights.
We need a proper legal framework for surrogacy in the UK which works in a global context and reflects the UK’s values of putting children's welfare first. Surrogacy is not going away. To manage it properly, and to make safe ethical surrogacy more accessible, we are calling for:
Written surrogacy agreements to be encouraged in the UK before conception so that key issues are considered and settled upfront
Where everyone agrees, parental orders to be made during the pregnancy to make the intended parents the child's legal parents at birth
A review of the parental order criteria to ensure the law is workable and inclusive, ensuring that all children born through surrogacy can have their parentage recognised
Clarity that UK law permits surrogates to be compensated, reflecting reality and allowing this issue to be dealt with more honestly and transparently
The family court continuing to decide what is in the child's best interests if there is a dispute, so that children’s welfare remains paramount
Prompt recognition of the status of children born through surrogacy overseas, ending the long wait to come home
Within the existing non-profit model of UK surrogacy arrangement services, more workable rules and an abolition of the restrictions on advertising
Rights to information (accessible in adulthood) for children born through surrogacy in the UK and overseas, in line with the law on gamete donation
If you have been affected by these issues personally, then as well as signing our petition please also write to your MP and tell them about your experience (here's how http://www.brilliantbeginnings.co.uk/blog/surrogacy-reform-we-need-your-help)
Law reform is coming and, whether you are a surrogate, a parent, a parent in waiting, a person born through surrogacy, a family member or a professional dealing with these issues, we need your help to educate all those in Parliament about the realities of modern surrogacy.
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