Surrogacy: Government Policy

Kirsten Oswald Excerpts

Tuesday 21st January 2020 Westminster Hall

[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.

[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 ---

[Kirsten Oswald (East Renfrewshire) (SNP)]

It is a pleasure to serve under your chairmanship, Sir David. We have heard a great deal of useful information in the two speeches that have been made. There can be no doubt in the mind of anyone who has watched the debate that change is needed. I thank the hon. Member for Brigg and Goole (Andrew Percy) for securing the debate. It is a really important topic and, as he suggested, the laws around surrogacy are simply outdated. They need to be improved as a matter of priority, so that children, surrogates and intended parents can be far better supported.

We hear a great deal in this place about the importance of family. If that is sincerely meant, we need to understand that not all families are the same and that families coming together via surrogacy require particular support by making the law work for everyone involved. When I started to look into this issue, I realised that the laws on surrogacy had not changed since they were introduced in the 1980s—which were not yesterday—and that they do not reflect the huge changes in society that have taken place in the intervening decades. It is no wonder that the laws of 40 years ago do not meet the needs of families and people who wish to become families today. That is expressed very well by Brilliant Beginnings and NGA Law, which said:

“The law cannot comfortably deal with the modern realities of diverse surrogacy experience, and as a result the courts have stretched the rules to make orders crucial to safeguard children’s welfare…There are limits to how far the courts can evolve the law and some children (particularly those born to single parents) have been left without resolved parentage. Judges of the High Court Family Division have repeatedly and consistently expressed concern about UK surrogacy law.”

That is, of course, completely unacceptable. In any case, surely intended parents should not have to go through a cumbersome and lengthy court process in order to become their child’s legal parents. That is a welfare issue, and it significantly affects the intended parents’ ability to make important decisions about the child in their care.

I am glad to hear the enthusiasm for a new legal framework for surrogacy, and for the importance of having the interests of the child, surrogates and intended parents at the centre. It was interesting that Lady Paton, who is the chair of the Scottish Law Commission, said:

“Surrogacy has become a significant issue in today’s society. The interests of all the parties involved must be properly regulated and protected. That is the focus of our proposals.”

That interest and focus is very welcome. The Scottish Government will consider the report and its recommendations once they are finalised, and I look forward to that. In the meantime, I would reflect on the views of my constituents, Stuart and Gordon, who are on their surrogacy journey and have expressed their situation—they are dealing with it better than I ever could. They told me:

“We got married in 2018 and have been together for four years. We have always wanted to have a family but as a male couple, the challenges of creating our own family are much harder.”

They talked about their wish to start a family as being really important to them and, of course, to so many other people. It is something that we take for granted, but for Stuart and Gordon, as for other couples on a surrogacy journey, that is not the case. They simply want to be able to move forward with the certainty that the law is keeping pace with society, and that the frameworks that should be in place take proper account of the need to be efficient and effective, with a focus on the people involved at the heart of it.

As things stand, the system is needlessly and illogically stressful. It is confusing and assuredly not in the interests of the welfare of the child concerned. I hope that we can find constructive ways forward, and I look forward to hearing from the Minister. I hope the law can catch up with the reality of our communities, so that my constituents and others in similar positions are able to have their families that they wish for.