What do Elton John, Cristiano Ronaldo and Kim Kardashian have in common aside from being well-known names if you are a follower or fan of celebrity culture?
They have all made news headlines with reports of surrogate mothers providing them with their little bundles of joy.
For many of us reading such stories, it might seem like a simple concept – a straightforward and almost instant way to add to your family. There is, however, nothing straightforward about UK surrogacy laws.
As a lawyer, I’m fascinated by complex issues, and that is what first drew me to my main research area – the legal issues that people may encounter if they embark upon a surrogacy journey.
In a nutshell – if something so complex can ever be described in a nutshell – surrogacy laws are far from perfect.
In fact, they are so flawed, that the Scottish Law Commission and the Law Commission of England and Wales (independent bodies established to make recommendations to government to reform the law in England and Wales and in Scotland) are conducting a public consultation on their provisional proposals to reform the law governing surrogacy.
While academics like me who have a keen interest in the area, and people who have investigated either using or being a surrogate, will probably already have a view on the current laws, a public consultation by its very nature seeks out members of the general public to contribute to the discussion. But first, people need to have an understanding of the current laws.
So, what are the problems with surrogacy laws?
I have been researching this area for almost a decade and I know many people are surprised to discover that, according to the Human Fertilisation and Embryology Act 2008, the woman who has carried the child will be treated as the child’s mother, even if they are not genetically related to the child. Furthermore, if they have a spouse or a civil partner, they will be regarded as the child’s legal second parent (although where the intended father’s sperm was used to create the embryo, the intended father may be treated as the legal father instead). Therefore, at the time of birth neither – or at most one – of the intended parents will actually be the legal parents of the child.
Another problem is that while it is possible for a surrogate to extinguish their status as the child’s legal mother through a so-called ‘parental order’, which may be made by a court on application by the intended parent(s), there are several problems that can arise with this.
For example, a parental order can only be made if you have received no money other than ‘expenses reasonably incurred’. Given the ambiguity of this expression, the provision has proved highly problematic and difficult to apply in practice.
Furthermore, a parental order cannot be applied for until after the child has been born, and the court cannot make a parental order less than six weeks after the child’s birth. This is because a parental order can only be made with consent, and the 2008 Act says that the consent of the surrogate is ineffective if given less than six weeks after the child’s birth.
Also, at the time of the application and the making of the order, the child’s home must be with the intended parents. This can be potentially problematic in cases where the intended parents have separated prior to or during the parental order proceedings, or if the child has been stranded abroad due to immigration issues if born as a result of a cross-border surrogacy arrangement.
Legal parenthood aside, another key feature of the current regulation of surrogacy is that surrogacy agreements are not legally enforceable. This means that if the surrogate changes their mind and decides not to hand the child over to the intended parents, they cannot be forced to do so merely because the surrogacy agreement said they should.
The fact that the surrogate is treated as the child’s legal mother at birth, combined with the non-enforceability of surrogacy agreements strengthens their position vis-à-vis the intended parents.
But, on the other hand, the current rules on legal parenthood seem not to coincide with the parties’ intentions whereby both the surrogate mother and intended parents would expect the child born of the surrogacy arrangement to be the child of the intended parents from birth.
If you are still reading, you may now have a bit more of an oversight of just a few of the complexities surrounding surrogacy!
At the heart of surrogacy is the desire to create loving and stable family units but with laws as convoluted as they are, the whole area could well be regarded as a ‘proverbial minefield’.
I have been asked to lead on organising the public consultation event in Aberdeen, and I hope people will come along and help us to make some strides towards shaping a new UK law on surrogacy.
The Aberdeen event is on September 10, from 1-3pm in the Sir Duncan Rice Library at Aberdeen University. The event is open to all, however places are limited and registration is therefore required. To register please contact me by emailing k.trimmings@abdn.ac.uk