A government body in the UK has suggested a complete overhaul of that country’s surrogacy law.
The Law Commission of England and Wales and the Scottish Law Commission, the equivalents of the Australian Law Reform Commission, have suggested that that country’s surrogacy laws be overhauled so that in most cases there is no longer a need to go to court. Instead, there will be a pathway through agencies so that, if all the boxes are ticked for the surrogacy journey, then the intended parents will automatically be recognised as the parents upon the birth of the child and the surrogate will no longer be a parent.
For agreements that tick all the boxes, this is an absolutely revolutionary change.
Australian surrogacy law is based on the UK model.
The Commissioners said:
“The most pressing areas of the law in need of reform raised with us by stakeholders included…The problems caused by the attribution of legal parenthood in surrogacy arrangements, the lack of clarity in the law on payments, and the international surrogacy arrangements.
In relation to the attribution of parenthood, many stakeholders argue that the current law does not reflect the intentions of any of the participants in the surrogacy arrangement, that the intended parents be the legal parents of the child from birth. They argue that the law does not operate in the best interests of the child. Concerns were expressed that the intended parents may be prevented from taking important medical decisions in the days after the child’s birth as, not being the legal parents of the child, they also lack parental responsibility. Surrogates also expressed concern at being legally responsible for the child, which they do not consider to be theirs, unless and until a parental order is granted.”
In most Australian States the amount that can be paid to a surrogate is a reasonable cost. In the UK, unlike Australia, the court authorises overseas surrogacy arrangements.
The Law Commission has said:
“On the issue of payments, stakeholders express the view that the current law, which permits intended parents to pay surrogates “expenses reasonably incurred”, is unclear and uncertain. It has been suggested the provision is out to mislead, and provides little guidance on what payments can be made in practice. We have seen payments being made to surrogates for which appear beyond the everyday understanding of an “expense”, with no challenge from the court. Moreover, the court now regularly authorises payments in excess of reasonable expenses made in relation to overseas commercial surrogacy arrangements, further adding to the confused nature of the law. Stakeholders also express strongly opposing views on whether a woman who provides the service of a surrogate to intended parents should be able to receive payment beyond expenses (however widely the term “expenses” is understood).”
In the words of the Commissioners:
“Reform is clearly needed.”
The Commissioners said:
“There is a strong case for reform to the law. We believe that the current law is out of date, unclear and not fit for purpose. We think that the law needs to be updated to make it workable and to bring it up to date, and ensure that it protects the welfare of all the participants to the arrangement including, most importantly, the welfare of the child.”
Differences between surrogacy and adoption
The Commissioners said:
“We take the view that surrogacy offers and different, and distinct, pathway to parenthood from adoption. The context in which a surrogacy arrangement is made, and the circumstances in which the child is conceived, are both very different from that of adoption.
One salient difference is that the adoption process begins only after a child already exists, whilst in surrogacy the intended parents and the surrogate begin the process of reproduction together. Surrogacy can, therefore, be seen as a medical solution to infertility as well as a method of reproduction, in a way that adoption cannot. [The Law Commissioners here cite the American Bar Association policy as to a proposed Hague Convention on Surrogacy, which I co-authored].
We think that the other crucial distinguishing feature in a surrogacy arrangement is the intentions of all the parties. As the authors of surrogacy, law, practice and policy in England and Wales explain:
“The key difference between surrogacy and adoption lies in the circumstances of the conception. A surrogate becomes pregnant with the intention of conceiving and carrying a child that will belong to someone else…The child’s conception was brought about at the behest of the intended parents, and on the basis that the surrogate agreed, at the time, to hand the child over to the intended parents to raise as their own child…””
The Law Commissioners then noted a court case in which it was said:
“Intention is one of the reasons why a parental order is better suited to surrogacy situations than an adoption order. [The judge] explained that a parental order “reflects the reality of what was intended”. In adoption, the genetic parents do not conceive a child with the intention of that child being adopted, and third parties are unlikely to be involved until after the birth. In surrogacy, by contrast, the intention of all the parties to the arrangement that the surrogate will have a child which the intended parents will then raise as their own is the very core of what a surrogacy arrangement is.”
Commodification v. Autonomy
The Law Commissioners note that the ethical debate around surrogacy reflects attention between autonomy and paternalism:
“Those who support surrogacy on an ethical basis highlight that a woman may be capable freely to decide to become a surrogate, and can be empowered by the freedom to participate in a surrogacy arrangement. Those who oppose surrogacy argue that it might constitute exploitation from which women need to be protected.”
The Commissioners said:
“We consider that law reform in respect of domestic surrogacy arrangements can alleviate, if not eliminate, these concerns by providing more effective regulation of surrogacy arrangements, and revised eligibility requirements and safeguards.”
Problems with surrogacy arrangements
In the UK:
“…not all surrogacy journeys proceed without problems.
We have been told about situations in which a breakdown of the relationship between the surrogate and intended parents during the pregnancy has led to the surrogate refusing to allow the intended parents to take care of the child, or to give the necessary consent to the making of the parental order. [There have been similar cases in Australia.] There have also been cases where a surrogate has faked a pregnancy or falsely reported a miscarriage. Nearly everyone that we have spoken to has emphasised that such cases are rare, although one lawyer did tell us that, during 2018, she had dealt with two cases where, during the pregnancy, the surrogate had changed her mind about giving up the child.”
Any moves for surrogacy reform in Australia
There are no moves at this stage for a model along the lines proposed by the UK Law Commissioners. Any proposed change to have national model laws looks like the medium to long term, not in the short term. Currently:
· The Federal Government proposes to work with the States and Territories about surrogacy law reform. It took the Federal Government over two years to respond to the House of Representatives inquiry into surrogacy, which in itself might indicate a glacial pace of reform.
· A review into ART and surrogacy law remains under way in Victoria.
· A draft bill concerning surrogacy was put before the South Australian Parliament last year. It has yet to be debated.
· The WA ART and surrogacy review has been undertaken. The WA Government has yet to provide a response to that review. Nevertheless there is a bill before the WA Parliament to remove discrimination against single men and gay couples in surrogacy. That bill is currently before an Upper House Committee following a filibuster by an opposition MP in the Upper House lasting 22 hours.
· The Northern Territory Government is taking soundings from the community currently as to a proposed surrogacy bill.