Surrogacy

Jessica Lee Excerpts

Tuesday 14th October 2014 Westminster Hall

[Jessica Lee (Erewash) (Con)]

It is a great pleasure to speak in front of you during this important debate, Sir Edward. I am grateful for the opportunity to raise the matter in Westminster Hall today.

Of the many functions of Parliament, one of the most important is to respond to changes in society and, when appropriate, to legislate accordingly. The law on surrogacy is outdated, limited and in places illogical. It is difficult to see how the current law, such as it is, can be said to help people who are starting families without the process involving significant stress and risk. Although there is no small or completely straightforward change to alleviate such problems, the time has come for Parliament to take a fresh look at the rules around surrogacy and to commit to helping people to start a family. I have some experience and interest in the matter from my time as a family law barrister.

Surrogacy is on the increase. Despite a lack of official figures, save for what is recorded on the parental order register, it is estimated that between 1,000 and 2,000 children are born through surrogacy each year, which is up from between 50 and 100 in 2008. The numbers are rising sharply, which is why the time is right for Parliament to explore the solutions to help the families and surrogates involved in the process. To start with, it is worth considering why families or individuals turn to surrogacy. There are of course several reasons, including unexplained infertility, cancer, couples being of the same sex or, occasionally, individuals wanting a child. Whatever the reason, however, the current system has uncertainties throughout. Some commentators have described surrogacy as a legal and political minefield, which may be right, but Parliament’s role is to face up to such problems and to try to find solutions.

Not only are there problems with the law in this country, but an international framework for surrogacy, unlike adoption, is lacking. The rules in the UK are so ambiguous that potential parents are increasingly turning to other countries to find surrogates, which has its own problems. The lack of an international structure leads to delays and complications when they return to the UK with their children. The problems were highlighted over the summer with the case of baby Gammy, one of a set of twins born to a surrogate in Thailand for Australian parents. Gammy happens to have Down’s syndrome, and there is a dispute between the surrogate and the intended parents as to the reasons why he is now separated from his twin, who has gone to Australia. It cannot be right for such children to be left without a clear set of international rules to resolve the dispute.

The Minister may not be surprised to hear that I am not short of possible solutions to the issues around surrogacy and ask her to reply directly to my proposals. I am sure that she will agree that the current system has problems and those problems must be the starting point. With that in mind, I am sure that she will be grateful for the opportunity to work with me and others and across Government Departments to help families by seeking solutions that can reform the system.

In summary, I am calling for the following changes. First, I want new legislation to be brought forward to update the law or to amend the current legislation to help prospective parents and surrogates. Secondly, there should be written agreements for those going into surrogacy to ensure that all potential future issues around the pregnancy have been discussed and agreed. Thirdly, I want an international framework for surrogacy. Fourthly, there should be a code of practice for prospective parents and surrogates. Fifthly, we should have pre-birth orders, because it is right that there should be an immediate transfer of parenthood upon birth. Sixthly, payments to surrogates need to be regulated and transparent and should be for the surrogate’s “inconvenience” rather than for the acquisition of a child. Finally, we should end the non-extendable deadline of six months for applying for a parental order. I will discuss a related development that came in a recent judgment later, but it cannot be right to have no flexibility in a family law application of this nature.

The Surrogacy Arrangements Act 1985 and the Human Fertilisation and Embryology Act 1990 provide for the current legislative arrangements. The 1985 Act made it a criminal offence to advertise for a surrogate mother, to advertise oneself as a prospective surrogate or for third parties to broker a surrogacy arrangement on a commercial basis. The Act made the UK surrogacy arrangement unenforceable and the legislation was perhaps aimed to discourage surrogacy. The reality, however, was that surrogacy cases were beginning to rise in the UK and the legislation left the whole structure without professional support, which was reflected on by High Court judges at the time. In 2007, Mr Justice McFarlane commented:

“Given the importance of the issues involved when the life of a child is created in this manner, it questionable whether the role of facilitating surrogacy arrangements should be left to groups of well-meaning amateurs.”

He makes a good point.

The 1990 Act created for the first time a bespoke legal process enabling married intended parents to reassign legal parenthood to themselves and obtain a parental order. It was updated in 2008 and extended those eligible to apply for a parental order to include unmarried and same-sex couples. That, however, is it. That is our entire legal framework. The various pitfalls in the current legislation are many and I will now speak of how Parliament can best legislate to help all involved.

Enforceable written agreements and a code of practice would deal once and for all with the uncertainty surrounding surrogacy. There are an infinite number of questions to ask before going into a surrogacy arrangement. A written agreement and a code of practice would provide clarity for intended parents and for surrogates. All those involved need proper advice and proper safeguards against all eventualities. What if the pregnancy results in more than one baby? What about communication between all involved during the pregnancy? What if the child has a disability? What about the arrangements for the actual birth? Those are just a few of the obvious, practical problems that need to be addressed and could be addressed by written agreements.

I have been discussing the matter with other MPs and some of my constituents. Following a conversation with a couple in my constituency, I will put it like this: I would not expect my constituents—the good people of Erewash—to have to purchase a house or lease a car without a contract, so why when trying to form a family, which is the most important thing that they will ever do, with a surrogacy would they do so with an inadequate framework? It cannot be right, but it is within Parliament’s power to change the rules.

The next change I would like relates to pre-birth orders. It is important to establish legally who the parents are from the moment of birth. At the moment, the surrogate, and their spouse if they have one, are the legal parents of the child. It has been said to me over the past few days that there is always the risk that surrogates will change their mind and that it must happen all the time. It is a common misconception. To my knowledge, only two cases of surrogates seeking to keep their baby have been reported in the past 30 years compared with some 1,000 successful arrangements. Typically, surrogates are mothers who have found pregnancy easy and then want to help other families. They have a commitment to help the intended parents and want to see them have their own family and see the child grow up in that unit. We need to support those women and to make the law work for them.

Furthermore, many children are being born abroad, if the surrogate is based there. That creates more problems, because the child can be born stateless, making arrangements to come home to the UK complex. If the parental order could be obtained during the pregnancy, arrangements to come home with the child would obviously be far more straightforward. A number of MPs have dealt with scenarios in which a child is born abroad and there are difficulties in returning to the UK.

The international context of surrogacy can add to the difficulties of applying existing UK legislation to the reality of modern surrogacy. Surrogacy law can be complex for foreign surrogacy arrangements. There is no international harmonisation of English and international law, and we do not automatically recognise a foreign birth certificate naming the donor parents as the legitimate parents of a surrogate-born child. In stark contrast with adoption, which requires the thorough vetting of parents, anyone can enter into a surrogacy arrangement abroad.

Automatic recognition of the surrogate as the legal mother, however, can cause its own problems in the context of international surrogacy agreements. In 2008, a British couple who had paid £23,000 to a surrogate mother who bore twins for them in Ukraine were at first unable to bring the children back to the UK, since the couple were not recognised as the legal parents. That situation took a year to resolve, during which time the children were left “marooned, stateless and parentless”, leading the judge dealing with the case to issue a stark warning about how dangerous such a scenario is.

There are many practical problems to getting home safely to the UK with the surrogate-born child after the birth, because of issues to do with the right travel papers, entry clearance and citizenship. Parents then have to look at the legal status of the child as soon as they return and any necessary interim legal measures. For instance, are the eligibility criteria for a parental order all in place? What about the legal position of the surrogate, and her partner if that is relevant, under English law? The complications are many.

Rules on surrogacy vary from country to country, so not only do we need to look at our domestic law, but all countries ultimately need to look at the international framework. In some countries, surrogacy is banned completely, such as in Germany, Italy, France and Sweden. In some countries, the law is complex, such as in the UK and Australia. Elsewhere, 19 states in America have laws clearly recognising surrogacy and another 10 states allow unpaid surrogacy. Also, anecdotally, I know of same-sex couples who have moved to the States with work, in part because they know that in due course it will be more straightforward there for them to have a child through surrogacy. Thus, all children born via surrogacy in the USA are eligible for a US passport, regardless of the citizenship of the parents, but that is inconsistent with other countries.

In July this year, the Government of Thailand announced changes to their regime for commercial surrogacy, stating that all surrogates will have to be blood relatives. As I made reference to earlier, a case in Thailand hit the headlines over the summer, and one can only feel sympathy for everyone involved in it. The case of baby Gammy, however, absolutely highlights the pitfalls and difficulties for all concerned. The outcome of such international situations—involving Thailand in this case, but it could be anywhere—might be that surrogate arrangements become more covert, and no one wants that. What we want is clear and transparent arrangements in this country and abroad.

[Stuart Andrew (Pudsey) (Con)]

I congratulate my hon. Friend on securing this important debate. Among a number of concerns, many people fear exploitation. Is not preventing that another reason for the importance of reaching international agreements?

[Jessica Lee]

My hon. Friend makes a good point. The way to avoid such exploitation is clearly to have a clear and transparent structure. That is what is missing in domestic law, where there are arrangements, although they are not working properly, and internationally. Far fewer UK couples would consider going abroad if the domestic arrangements for them in England and Wales were completely straightforward, preventing them from feeling the need to travel around the world to find a suitable surrogate.

Parental orders, as I said near the beginning of my speech, have a strict six-month deadline in which to be registered once a surrogate has had the child. The law provided for no flexibility on that until very recently—a judgment was published in the past few days. In that case, the president of the family division of the High Court made the following comment:

“Can Parliament really have intended that the gate should be barred forever if the application for a parental order is lodged even one day late…It is the very antithesis of sensible; it is almost nonsensical.”

The judge then went on to make the parental order and the wardship was set aside. There had been significant delays in returning the child to the UK.

It can be said, therefore, that case law has moved matters forward, but the rules remain the same and that is a matter for Parliament to resolve and to do so early. We are dealing with people’s families and with emotive issues. That is the most important thing. If there cannot be flexibility in obtaining a parental order, that is a most unsatisfactory position. That must be one of the first matters in which there has to be flexibility in an application under family law.

I want to address the issue of same-sex couples. Since the Marriage (Same Sex Couples) Act 2013 passed through Parliament, we probably have had an increase in the number of same-sex couples looking to have a baby through surrogacy. That has been on the rise for some time, but the Act supports it as well. On Second Reading, the Minister gave one of the most thoughtful and measured speeches on the legislation, which I recall clearly, so I am delighted that she is responding to the debate today. She has always taken a thoughtful approach to the issues surrounding same-sex couples.

In the UK, anecdotally, same-sex couples conceive with the help of a friend, relative, or a surrogate introduced to them by a UK-based non-profit surrogacy organisation. As we know, such surrogacy arrangements commissioned in the UK are unenforceable by UK courts, so the problem remains. Increasing numbers of same-sex couples are travelling abroad for surrogacy. As I mentioned earlier, a popular destination is the USA, because some states can guarantee that both fathers will be named on a child’s birth certificate from the outset. But, again, we come back to the problems that I have raised before. Parliament did well by passing the same-sex marriage Act and progressing matters in that way, but for issues that follow on from that, Parliament needs to do the same. We must have an even-handed approach in addressing every aspect of people’s social and family lives, and that is why we need to update the law.

I have set out for the Minister my key requests. I accept that they are not small ones, and some will take time to grant, in particular those concerning an international framework. However, I genuinely feel that there is a real change in emphasis. There is a momentum to address the issue. Judges, as I have quoted, are saying that statute law is not right, and we need to move matters forward. We have an opportunity here today to take the initiative. We very much need to start the process, which would be welcomed across the parties. I have been helped by the right hon. Member for Birkenhead (Mr Field), who apologises for the fact that he cannot be here today. There is strong cross-party support for moving things forward. I urge the Minister to take this one-off opportunity and take a stand today and offer some solutions to these complex and extremely important questions, which could transform people’s ability to have their families in this country.