https://www.thetimes.co.uk/article/4c2e9df1-1091-43f8-a827-063c27e0bad0?shareToken=f958003d8601191a58fbb7cf46874f2cFears emerge over surrogacy reforms
Concerns have been raised over the potential exploitation of women
Jonathan Ames
Thursday April 06 2023, 12.13am, The Times
A row has erupted in Spain over the 68-year-old TV star Ana Obregón’s decision to have a child via surrogate mother
Proposals to overhaul Britain’s “outdated” surrogacy laws were warmly welcomed as they were unveiled last week, but several doubts have since crept into experts’ minds.
One fear is that as such a sensitive subject engenders strong feelings, any reforming legislation will be viewed as too contentious and therefore too difficult to navigate through parliament.
At the heart of the reforms proposed to ministers by a joint announcement from the law commissions of England and Wales and Scotland was a call for those who would raise the child to have legal parenthood from birth. The commissions also called for the creation of a “rigorous pre-conception screening and safeguarding” system to be overseen by non-profit organisations and answerable to regulators.
Any watering down of the proposals through parliamentary wrangling will result in nothing more than a “sticking plaster for inefficiencies within the existing system”, Cara Nuttall, a partner at the law firm Brabners, says.
Lawyers point out that surrogacy evokes strong reactions, but often the most vocal are those who take the view that the practice is morally or ethically wrong. Some argue that it inherently exploits women.
An example is the row in Spain, where Ana Obregón, a 68-year-old television star, has triggered outrage in the country after announcing that she has had a child via a surrogate mother in the US. The practice is illegal in Spain and other European countries, including France, Germany and Italy.
“Anyone would be naive to think surrogacy does not harbour risks of exploitation if done wrong,” Nuttall says. She adds, however, that banning the practice can “drive it underground, where the risk of exploitation is far greater”.
She highlights what is potentially the most controversial element of the proposed reforms — judges would be given an overriding power to transfer parenthood regardless of a surrogate mother’s refusal in a procedure that would be akin to forced adoption.
Judges would only be able to take that drastic decision if they were satisfied that doing so was in the child’s best interests. “I suspect that for those who are opposed or anxious about surrogacy in the context of surrogates’ rights . . . the ability to forcibly remove parenthood could be a step too far and prove a stumbling block,” Nuttall forecasts.
Concerns have also been raised about other facets of the proposed reforms, with some taking the view that the commissions were too conservative in their recommendations.
Michael Gregory, a partner at Lowry Legal, says that the commissions could have gone further to have “encouraged more intended parents to consider UK-based surrogacy arrangements rather than continue to look overseas”.
He says that even under the reforms, surrogate mothers will continue to retain the right to withdraw consent regarding legal parenthood at any time during pregnancy and up to six weeks after the birth. In theory they will be able to offer any or no reason for that decision. “This will only continue to compound the uncertainty intended parents with UK-based surrogacy arrangements face and will only seek to encourage intended parents to go abroad where surrogacy agreements are legally recognised and can be enforced,” Gregory says.
Natalie Sutherland, a partner at Burgess Mee Family Law, raises another issue regarding foreign jurisdictions. She says that “disappointingly” the commissioners have not recommended that “surrogacy arrangements conducted in certain vetted countries will be automatically recognised, much like with international adoptions from certain listed countries”.
Sutherland says that it had been hoped that jurisdictions such as the US and Canada, which have “well-trodden surrogacy pathways”, would satisfy the ethical standards and appear on such a list.
More broadly, Zaina Mahmoud, a researcher at the University of Exeter, who contributed to the commission’s analysis, says that the ultimate recommendations go “some way to relieve some of the issues currently presented by the British legal framework”.
Her research showed that on a practical level surrogates favoured payments for the essential costs of pregnancy, any additional costs of pregnancy, loss of welfare entitlement and loss of earnings. And they were divided over whether they should receive gifts, with some of those surveyed saying that it would undermine “their altruistic motivation” and be seen as “backdoor” payments.
“While the proposed reforms go some way to alleviating these anxieties, the proposals fail to account for the subjective and relational nature of the relationships formed during these arrangements,” Mahmoud says.
The academic argues for “more recognition of how onerous gestational labour can be and how it should be compensated. Ideally, reforms should provide security and certainty, minimise any potential negative impact on the relationship and ensure surrogates’ altruism does not result in their own financial detriment.”
Gregory agrees that financial concerns remain despite the reforms. “The intended parent will have to account under the new proposals for every single penny that they pay to their surrogate against a backdrop of a strict expenditure list. What they can and can’t pay for will be scrutinised. There could even be criminal sanctions for those intended parents that pay more to their surrogate. This is a backward step as to what is happening on the ground at present.”
Returning to the legal position, Mahmoud says that almost all those involved in her research supported the proposals for intended parents to have legal recognition at birth. “They felt it accurately reflected their intentions in entering surrogacy arrangements,” she says.
However, Mahmoud adds that the surveyed surrogate mothers still want recognition of their role in “family formation”, potentially including recognition on the birth certificate that reflected the fact that they gave birth to the child, albeit without the accompanying legal rights and responsibilities.
