Regarded as a principal component of family law legislation, the Surrogacy Act 1985 explicitly exemplifies the prohibition of commercial surrogacy in the United Kingdom. Its hasty introduction into the law was after the birth of Britain’s first commercial surrogate baby. Surrogate Kim Cotton was paid a hefty £6,500 to deliver the baby to an infertile couple.
The principal issue at hand is the fact that the Surrogacy Act 1985 is so “firmly entrenched in the 1980s” (Andrew Spearman) that it fails to apply to modern surrogacy in the 21st century. In the UK, this law means that surrogacy contracts are unenforceable – no legal document or third party has the ability to enforce a surrogacy arrangement. Ultimately, this poses an unavoidable risk for both the intended parents and the surrogate as both parties have no approach if one or the other backs out of the agreement. Surrogates are made particularly vulnerable to the risk of parents no longer wanting the baby as this could mean they are now responsible for caring for the child as its legal parent.
As well as the Surrogacy Act 1985, the Human Fertilisation and Embryology Act 1990 is employed in the UK for intended parents to apply for a parental order, crucial in gaining legal rights over the surrogate child. In the time it takes to process and meet the requirements of the parental order, the surrogate (and their spouse if they are married) assume legal parentage. This has the potential to be worrying for intended parents as, in the event that the child needs emergency care, the legal power to make medical decisions rests with the surrogate.
Additionally, courts are not able to issue a parental order less than six weeks after the child is born as they can only be made with the consent of the surrogate, which does not suffice until six weeks after the birth. The law is equally as ambiguously worded as parental orders can only be enforced if no amount other than “reasonable expenses” is paid to the surrogate.
Such concerns with surrogacy are perpetuated by those who were not as educated on the matter, especially as many hopeful parents opt for a more viable informal surrogacy. In the eyes of the law, this means they have no recognition as the legal parents of their child. This is further exacerbated by the criminalisation of solicitors and other third-party persons who assist in the commercial process as this could mean that parents are not armed with the knowledge they require for ensuring a smooth surrogacy and transfer of parental rights.
As such, key reforms to the UK’s current surrogacy legislation must be made. This would involve amending the Human Fertilisation and Embryology Act 1990 to facilitate the recognition of the intended parents from the birth of the surrogate child, essentially avoiding the period of uncertainty over their rights. Another positive reform would be permitting the use of written surrogacy contracts to provide sufficient legal security for all parties involved in the arrangement. Perhaps these reforms should be done in line with the United States or Canada, which both have regulated and effective systems with Canada being the more affordable choice for hopeful parents. As of 2021, around four times as many parents in England and Wales are using surrogates compared to a decade ago, determining that it is certainly time for the law to catch up.
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