Surrogacy: Government Policy

Andrew Percy Excerpts

Tuesday 21st January 2020 Westminster Hall

[Andrew Percy (Brigg and Goole) (Con)]

I beg to move,

That this House has considered Government policy on surrogacy.

It is a pleasure to serve under your chairmanship, Sir David, and a delight to see my current favourite Minister and favourite shadow Minister in their places. Having flannelled them, I am sure that the debate will receive a very successful response.

Surrogacy is an issue that I came to by accident, having watched a documentary about people who were going overseas to partake in surrogacy arrangements, and some of the problems that that was causing, particularly when it came to the welfare of some of the surrogates. From that, I started to look at the issue of surrogacy in the UK a little more closely. Having become more interested in the subject, it quickly became clear that there is urgent need in this country for reform of surrogacy law. There is also an urgent need for Government to understand and appreciate the important role that surrogacy plays in creating families in this country, whether those families are heterosexual couples, same-sex couples, or single people who wish to create a family. It is a legitimate, valued and socially acceptable means of family building.

Apart from investigating the situation of surrogacy overseas, the only other thing I remember about surrogacy is the debate in the 1980s, when I was a kid growing up. That was when the legislation on which UK surrogacy is presently based came into being, in response to some of the stories and concerns about surrogacy at the time. The debate in the 1980s was very different from the debate we have now. We now understand that surrogacy in this country works, and that it is a legitimate and loving way in which families are created. I thank the previous Minister, my hon. Friend the Member for Thurrock (Jackie Doyle-Price), who is in the Chamber today. She was, I think, the first British Minister to publicly state in the House of Commons the positive role that surrogacy plays in this country. Although I do not wish to embarrass her, I will repeat what she said in July 2018 when she was a Minister in the Department of Health and Social Care:

“Surrogacy has an increasingly important role to play in our society, helping to create much-wanted new families for a range of people. The UK Government recognise the value of this in the 21st century where family structures, attitudes and lifestyles are much more diverse.”—[Official Report, 19 July 2018; Vol. 645, c. 38W.]

We could not disagree with a single word of that, and we thank her on behalf of the whole surrogacy community for the positive way in which she embraced surrogacy.

We in the surrogacy community also thank my hon. Friend for the guidance that was issued by her Department during her time as Minister, including “Care in Surrogacy”, which was guidance that the Department of Health and Social Care issued to healthcare providers across the country. It had the same simple aims that all of us in the surrogacy community want to achieve: to normalise surrogacy among healthcare professionals, and to avoid the embarrassments that sometimes occur when healthcare professionals do not understand how these arrangements are come to and just how normal they are. In the past, there have been car park handovers of children because healthcare professionals on maternity wards and in hospitals have not known how the legislation and these arrangements work. We all want to avoid those situations, so I thank my hon. Friend for that guidance, which was updated at the end of November last year. I also thank my hon. Friend for addling the brass, as we say in Yorkshire, to ensure that the Law Commissions’ review into the current legislation—a joint review by the Scottish Law Commission and the Law Commission for England and Wales—was a root and branch review. We are very grateful for that.

I also want to say a big “thank you” to the Surrogacy UK working group on surrogacy law reform, which has done a brilliant job. Some of that group’s members are here today, although of course I am not allowed to refer to people in the Gallery. Particular thanks must go to my constituent, Sarah Jones, who serves as the chair of Surrogacy UK. When I got interested in this topic, I did not realise that one of my constituents was chair of Surrogacy UK; it was quite by accident. A big “thank you” is also due to Natalie Smith, and to Dr Kirsty Horsey from Kent University, who led and chaired the review working party within Surrogacy UK. We are really grateful that the funding is in place, and that this review has now happened. It is a three-year project which, if memory serves, we are about half way through.

Surrogacy in the UK has been regulated since 1985 by the Surrogacy Arrangements Act 1985, which came out of the 1984 Warnock committee report. That Act contains a number of provisions that make advertising for, or as, a surrogate illegal, criminalise for-profit surrogacy and render all surrogacy arrangements as they stand unenforceable in law. Since 1985, there has been plenty of legislation to change some of that Act’s provisions. The Human Fertilisation and Embryology Act 1990 established that in all forms of assisted reproduction, a woman who gives birth, and no other woman, is the legal mother at birth. The legal problem with the situation now is that a surrogate who is carrying a child who has no genetic link to them is, in law, the mother at birth, whereas the intended parents, who may have a 100% genetic connection to that child, are not.

The 1990 Act also determines that the partner of the surrogate is the legal father, even though he may have had absolutely no part in the surrogacy arrangements. That is why parental orders are being created that enable legal parenthood to be transferred after birth as long as certain conditions are met. However, that takes six to nine months at best, and in many cases takes much longer.

Surrogacy legislation has evolved and changed over time. Not so long ago, a remedial order was passed by Parliament in response to a human rights court case. That order now enables single individuals to take part in surrogacy, something that was previously outlawed. The key problem with the legislation, as I have highlighted, is the issue of parent orders. Despite the fact that surrogates, intended parents, and everybody involved in these arrangements have only one interest at heart, that of the child, the current legal situation sometimes works against the interest of the child. It is very rare in a surrogacy arrangement for the relationship between the surrogate and the intended parent to break down, but the current law means that if that does happen, a surrogate who, at birth, is the legal parent can prevent legal parenthood from ever transferring, even though the children could have no genetic relationship to the surrogate.

The relationship breaks down only in a very small number of cases. Most surrogates go into this for entirely altruistic reasons, and the relationships between the surrogate, the parents and the child are normally very strong and often life-enduring. However, when such a breakdown happens, as in the well-known case of Re AB (Surrogacy: Consent), it can result in legal parenthood never being transferred, resulting in a situation where the parent in law will always be different to the parents in reality. That is not in the best interest of the child, which is why we in the surrogacy community welcome the Law Commissions’ proposals on this issue. By outlawing the enforceability of surrogacy arrangements, the current situation is one in which people want to properly formalise an arrangement, but cannot then rely on that arrangement later on in law.

Most of us involved in the surrogacy debate would say that what does work in the current UK legislation is the principle of altruism.

[Jim Shannon (Strangford) (DUP)]

This is a complex issue, and the hon. Gentleman is setting the scene very well. However, does he agree that in all these things, sensitivity must be key? Does he also agree that we perhaps need to look to our neighbours across the pond in the United States of America, for instance, where large numbers of surrogacies are carried out, to see how their policies and guidelines have made the process safe for parents and surrogates alike?

[Andrew Percy]

I thank my hon. Friend for that intervention, and will come on to the issue of surrogacy arrangements in the United States. Nobody would question that surrogacy arrangements in that country operate in the best interest of the child, but they operate on a wholly different basis to surrogacy arrangements in the UK: they operate on a commercial basis, which many of us would not want to see here. It is fair to say that in this country, surrogacy arrangements work. There is no doubt that the welfare of the child is at the heart of surrogacy arrangements, and at the heart of the courts in this country. However, as the debate progresses, we can of course take examples of best practice from other jurisdictions, whether through legally enforceable surrogacy arrangements or whatever else.

[Kirsten Oswald (East Renfrewshire) (SNP)]

Does the hon. Gentleman share my view that it is important to focus on the altruistic nature of surrogacy as we go forward in this debate, and make sure that the welfare of the children concerned is not adversely impacted by an overly commercial focus?

[Andrew Percy]

I entirely agree. I will say more later, but there is a debate in the surrogacy community about the nature of payments and whether its basis should be altruistic or commercial. Throughout the process, the view of the all-party parliamentary group on surrogacy, which I formed with other hon. Members, has been that we must maintain the altruistic basis of surrogacy in the UK. There are others in the community who take a different view; I will say more about that in a moment.

The all-party parliamentary group undertook a number of hearings in response to the Law Commissions’ proposals. The principal purpose of the debate is to explain where we agree with them and where we do not, and I thank the Law Commissions for the way they have engaged with us. They have been proactive and positive in coming to APPG meetings and some of the hearings, and they have been open throughout the process. That view is shared by everybody across the surrogacy community.

We took evidence from a number of interested parties. We heard from surrogates, intended parents, parents who have created their families through surrogacy, and the legal community. We even took evidence from Tom Daley who, with his partner, chose to undertake their surrogacy arrangement in the UK, not in the United States, precisely because there are some big reasons why the US is not as attractive a jurisdiction—although it is perfectly safe—for such arrangements. Those sessions were really interesting and valuable. In response to the Law Commissions’ initial consultation, we have some clear views on what we would like to see.

[Jim Shannon]

There is something at the back of my mind, which I want to put on the record and get the hon. Gentleman’s thoughts on. With the rise of celebrities openly discussing their surrogacy journeys—he has mentioned one—does he agree that we need a clearly defined strategy to address the rise in the number of surrogacies and the complexity of the issue, which is difficult for people to understand without clear guidelines?

[Andrew Percy]

It is absolutely the case that we need updated legislation. We welcome the arrangement of Tom Daley and his partner, Dustin Lance Black—I have just remembered his name; I am not very good at remembering actors’ names—because they are two loving parents who have created a loving family. They are a good example, because they demonstrate better than anyone, or as well as anyone, how loving families can be created in a range of ways—through surrogacy, IVF, adoption or marriage—in the UK in 2020.

Dustin Lance Black also undertook an interesting set of radio programmes, one of which, following surrogacy arrangements in the US, explained why they chose the UK and felt that the system here was better. The hon. Member for Strangford (Jim Shannon) is spot on, however, that we need a well-regulated and updated framework for surrogacy in the United Kingdom.

We as an all-party parliamentary group are positive and pleased by the Law Commissions’ proposals. We recognise how progressive many of them are, and that they balance most of the concerns about safeguards, ethical surrogacy and the welfare of children—of course—that were raised by stakeholders throughout the process. We also welcome the fact that, unlike in previous reports, the lived experience is front and centre of all the proposals. We believe that the commissions have engaged positively with the whole surrogacy community and interested parties.

Where do we agree? As I said, we are happy that a full root and branch review is taking place. We are also pleased that there is no move towards allowing the commercial surrogacy that we see in the United States, because it would then become the preserve of the wealthy. That is not the case with the altruistic nature of the current system, although it is not without expense or challenge. We have a situation in the United States where some families are now going out of the United States to undertake surrogacy because they cannot afford it there.

[Kirsten Oswald]

Everything that the hon. Gentleman has said builds up to the suggestion that it would be important to have clear guidance on what is meant by things such as “reasonable expenses”, and to balance that by ensuring that the regulation put in place is effective, efficient and fit for the intended purpose.

[Andrew Percy]

Absolutely; I could not agree more. That is exactly what we are calling for in the draft legislation, on which we hope we will receive support from both Front-Bench spokespeople. Although we want to avoid the commercial arrangements that exist elsewhere, we want a consultative focus on what payments should be considered legitimate in that surrogacy arrangement. In fairness, the Law Commissions’ consultation puts some of those things into broad categories of what may or may not be considered appropriate.

We also welcome the potential relaxation around advertising for or as a surrogate, and the proposal to divorce the issue of payments and costs from that of legal parenthood, so they are not tied together in the court system. When it comes to legal parenthood, the court system should be dealing only with what is in the best interests of the child.

In the survey undertaken by the Surrogacy UK working group on legal reform, 82.3% of surrogates surveyed thought that legal parenthood should be determined at or before birth. People who go through surrogacy want to create families for other people; they do not want to be the legal parent at birth. They are not doing it to become a parent, but to help others to become parents. Surrogates clearly want the issue of legal parenthood to be dealt with before birth.

We also agree with the Law Commissions’ proposal for a new pathway to enable that, so that by going through the new pathway, intended parents would achieve legal parenthood at or before birth after going through a number of stages. One of those proposed stages is seeking legal advice, about which there are mixed views, because putting lawyers into the middle of something can be very expensive, but we certainly agree that having implications counselling before undertaking surrogacy is important.

We agree that the new pathway should include the surrogacy arrangements, which are legally unenforceable at the moment, and that it should promote CRB and health checks for intended parents and surrogates. They seem like sensible ways to do things, as does ensuring that individuals and teams can work with non-profit organisations for support on the pathway.

Under those proposals, the old pathway—the current pathway—would continue. We accept that that would be the case, but we would want it to change to ensure that if a relationship breaks down, no surrogate could continue to deny legal parenthood to the parents of the child. That is blatantly unfair and not in the child’s interest. That needs to be corrected, as in the case of twins A and B, who have gone through that process.

We agree that double donation should be permitted in domestic surrogacy, which is not currently allowed. We allow people to create a family through double donation via IVF, but under the current legislation, we are effectively punishing a couple for infertility by denying them the right to create a family through double donation via surrogacy. We welcome the fact that that would be rectified by the proposed changes.

On overseas surrogacy, we also agree that there should be a quick route to legal parenthood in UK law for those who have felt the need to engage in surrogacy overseas, but only in the case of jurisdictions where we are absolutely clear that the welfare of the child and of the surrogate have been maintained. Canada and the United States would be obvious examples of where that would be the case, but there may be other jurisdictions overseas where surrogacy is taking place where that might not be the case.

We also have some views on the regulation of non-profit surrogacy organisations. As long as it is not overly burdensome, bearing in mind that these are non-profit volunteer organisations, we have no problem with that regulation. Where we would like to see things to go a little bit further is on the issue of the underlying principle of altruism. Although this is not a view entirely consistent across everybody involved in the surrogacy community, we want to maintain that altruistic basis for the reasons I have said about the costs involved in more commercial systems. The issue of payments, as the hon. Member for East Renfrewshire (Kirsten Oswald) referenced, is open to debate in the consultation. The APPG took hearings on that issue, and we would like to see them more clearly defined. There are payments for loss of earnings and even to cover a small holiday for people after the arrangement, which most people would consider to be part of the altruistic nature of an agreement, but we do not want to see those arrangements massively expanded to the point where there is basically a commercial arrangement by the back door.

When surveyed for the Surrogacy UK law reform group work, 71% of surrogates agreed or strongly agreed that a surrogate should be able only to claim expenses and not to profit—if that is the correct word—from the arrangements. We recommend that intended parents should reimburse all actual costs incurred by surrogate, who should make neither a loss nor profit from the arrangement, and that there should be a better definition, as I have said, about what constitutes reasonable expenses. All parties, of course, have to be accountable for their compliance with these rules.

As I said, we welcome the new proposals, but there is a problem with the new pathway. If the surrogate raises an objection during the new pathway to legal parenthood before or at birth, we effectively find ourselves back in the current situation, where it ends up before the courts and legal parenthood would be automatically stripped from the intended parents—we end up back in the current, unacceptable situation. We would like to see some more work from the Law Commissions on that scenario, to ensure that it is resolved in a different way through other arrangements.

Our proposal would be that intended parents should retain legal parenthood unless or until a court ruling is made—that is effectively the reverse of where we are at the moment. In the current rules, the surrogate retains legal parenthood. Our view would be that if we are going through the new pathway and the surrogate raises concerns, legal parenthood should remain with the intended parents unless a court determines otherwise. Of course, the courts are always going to place the child, whatever the position on legal parenthood, with whoever is in the best interests of the child. That will never change. That is what the courts do presently; it is always about the welfare of the child.

We are broadly supportive of the changes. I know that in response the shadow Minister and the Minister cannot say a great deal, given the issue is being considered by the Law Commissions. What do we want from the Front-Bench spokespeople today? We would like a repetition of the really positive statement that my hon. Friend the Member for Thurrock made previously about how surrogacy is a progressive way of creating loving families in the UK, and is one that enjoys the support of the Government.

I know that the Minister will fully appreciate that we would like her to follow up on the guidance issued by my hon. Friend the Member for Thurrock, and to ensure that it is being shared appropriately across maternity units, with healthcare workers and with trusts across the country. It was fantastic guidance, which really does help take away some of the nervousness that some people perhaps have when they see a surrogacy arrangement. Will she commit to checking and pursuing that with the various trusts, maternity units and elsewhere?

It would also be great if the Minister could spend some time at the APPG—the shadow Minister is also welcome—and meet with surrogates and parents who have gone through or intended parents who hope to go through the process. There is a legacy from the debate from the eighties. I remember as a kid that sometimes it did not feel quite right, because we were seeing arrangements with lots of money changing hands in the United States and in other jurisdictions, and I think some people still have a misconception around surrogacy. Sitting down with surrogates and intended parents is a good way to hear about how this is a really normal thing; it is just another way that families are created. People go through IVF or adoption, and surrogacy is just another way of creating a family. There are plenty of kids in this country who are brought up in loving families, but I think it is fair to say that those who are brought into the world through surrogacy have a particular advantage in that that family is even more loving. If the Minister were to sit down with surrogates and intended parents, I am sure she will feel that too.

I would also welcome any assurance she could give that she will continue to find the money to pay for this process, started by the brilliant work of my hon. Friend the Member for Thurrock. We are halfway through the process, so one would assume that that would be the case. We would also appreciate if she could spend some time, if she has not already, with the Law Commissions, after she has met the APPG, to get a sense on where they are heading.

Although I know the Minister cannot commit to this, because managing business is always a challenge, I hope that when the draft Bill is put forward, parliamentary time will be set aside. Regardless of anyone’s views on the general election, one good thing is that now there is at least certainty. That will perhaps allow time—we will not be crowded out quite as much as we have been in the last two years by other issues—so that we can get the legislation right. The legislation from the ’80s was fine for a period, but it was a rapid response to an issue that was perhaps not fully understood or appreciated, and things have moved on. The country has moved on. The legislation needs to move on and that is why it is so good that we are at this point.

I will say no more in the hope that there is time for other people to speak. I thank everybody in the surrogacy community for the work they have done in pushing this issue and we look forward to the next stage.

--- Later in debate ---

[Mrs Sharon Hodgson (Washington and Sunderland West) (Lab)]

It is an honour to serve under your chairmanship, Sir David. I thank the hon. Member for Brigg and Goole (Andrew Percy) for securing this important debate and for his important work in chairing the all-party parliamentary group on surrogacy, which, as we have heard, has held evidence sessions on surrogacy law reform. I also thank him for his very warm welcome to me and the Minister in his opening remarks—it is much appreciated.

[Andrew Percy]

The hon. Lady did not welcome me back.

[Mrs Hodgson]

It is very nice to see the hon. Gentleman back in this place after the election.

I thank my hon. Friend the Member for Hornsey and Wood Green (Catherine West) and the hon. Member for East Renfrewshire (Kirsten Oswald) for their welcome, albeit short, speeches. It is definitely worthwhile in a debate such as this to have more than just one voice. I look forward to seeing the all-party parliamentary group’s report on its conclusions, and I hope to work with the group in the future.

I agree wholeheartedly with the hon. Gentleman that surrogacy is a valuable and progressive option for many people who want to have children and create a loving family. However, the key piece of legislation surrounding surrogacy is now, as he said, 35 years old and severely outdated. I know this is a problem that the Government have previously acknowledged, and I welcome the former Minister, the hon. Member for Thurrock (Jackie Doyle-Price), who did so much to move the issue forward. However, there has still not been any serious reform of surrogacy legislation and, as we have heard, problems still persist. What should be a joyous time for parents can turn into a distressing burden. Applying for parental orders can take several months, and the process fails to reflect the realities of modern-day family life.

In a survey conducted by Surrogacy UK’s working group on legal reform, 92% of respondents agreed that surrogacy law reform is needed. As we have heard, the Law Commissions are carrying out a review on surrogacy and parental orders, and it has made some primary recommendations. The hon. Gentleman went through them in detail, so I do not have to. They include a recommendation for the intended parents to become the legal parents of a child from birth as per a surrogacy agreement. I hope that the Minister will respond to some of the Law Commissions’ primary recommendations. It is due to publish its full recommendations in 2021, but will the Minister set out what steps the Government will take in the meantime to prepare a Bill that would bring surrogacy legislation into the 21st century? That would indeed be a welcome step.

The legislation needs to make the requirements for surrogacy clear and fair for everyone involved, including, and most importantly, the child. That includes a definition of what constitutes a reasonable expense. Surrogates should not make a profit, but should not be left out of pocket either. A definition would provide legal certainty to the surrogate and the intended parents.

It is crucial that children are not left in legal limbo, as my hon. Friend the Member for Hornsey and Wood Green said. With that in mind, I believe that the ability to make a parental order without the surrogate’s consent under the new regime should be applied retrospectively. That means that children who are currently in legal limbo would be lifted out of that uncertainty and would be treated equally to children born after the new regime comes into force.

It is clear that the public perception of surrogacy has moved on since 1985. It is time, therefore, that the legislation does so too. I look forward to hearing the Minister’s response.