Surrogacy: Government Policy

Jim Shannon 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.

[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.