Hearing from Children on Surrogacy Law: What are the important questions:

Katherine Wade

Over two sunny weekends in July in a beautiful Georgian townhouse in London, I got the chance to ask children and young people what they think about the law on surrogacy.

This was a dream that I had had for a long time! Having spent the last few years researching laws surrounding surrogacy and donor conception, I noticed there were many active voices: lawyers, academics, surrogacy organisations, intended parents, surrogates and donor conceived adults. But one group was missing: children and young people.

Perhaps it is thought that surrogacy is a sensitive or complex topic or that children should not need to think about how things should be regulated. Maybe it is thought that children will not have views on matters of law and policy.

The truth is, of course, that they do!

What is Children’s Voices in Surrogacy Law?

Having received funding from the IME and UKRI, myself, Kirsty Horsey, Zaina Mahmoud and Charlotte Mills set up Children’s Voices in Surrogacy Law.

We were eager to hear from children and young people between the ages of 8 and 18 who were born through surrogacy or whose family members had acted as surrogates. We decided to do this through focus groups, artistic contributions to a “Digital Wall” and a conference panel.

Our calls for participants were supported by a range of organisations, such as SurrogacyUK, Brilliant Beginnings, COTs, MySurrogacyJourney, and the Donor Conception Network.

We identified major questions that had vexed stakeholders for years, and looked to the literature to uncover assumptions about what children would think or feel.

Working with illustrators, we designed decks of playing cards with definitions, illustrations, and games to facilitate the discussion in an age-appropriate and engaging way. Months later, armed with our decks of cards and a suitcase full of art materials, we set off for London and Canterbury to speak to children about surrogacy law.

Our results will not be available until at least next year, but we can talk about what we discussed with children and young people and why these questions are important.

What did we ask children and young people about?

We started with the topic of parenthood, asking children to brainstorm, through words, sentences and drawings, what makes someone a parent. We asked them to vote on who should be recognised as the parent of a child born through surrogacy, giving the option of the surrogate, the surrogate and her partner, or the intended parents. We discussed parental orders, uncovering their views on this system. This is an important topic, because the issue of parenthood has been the subject of intense debate, with proposals to change the law for many years (See Brazier et al, Horsey et al, Prosser and Gamble, Alghrani and Griffiths, Wade).

One of the most recent proposals is the “New Pathway” system proposed by the Law Commission in its 2019 Consultation Paper, which would mean that in domestic arrangements intended parents would be recognised as the legal parents of the child born through surrogacy at birth.

We sought to uncover whether children’s views differed based on the type of surrogacy arrangement (e.g., whether it was a straight or host arrangement). We learned about their views about the parental order requirement for one intended parent to have a genetic link to the child born through surrogacy.

These questions allowed us to discover children’s views on genetic links in reproduction, how that relates to their conception of parenthood, and how these concepts should translate into legal rules.

Topic Two discussed contributions to surrogates from intended parents.

We presented children with illustrations of various items and asked them whether they thought it was permissible for surrogates to receive these from intended parents. These items ranged from more basic expenses, like maternity clothes and pre-natal vitamins, to more contentious contributions, like gifts and money.

We were curious about how children perceive intended parents giving contributions to surrogates, and whether they think it is acceptable for surrogate to be paid for being a surrogate. It is important to get an insight into children’s views on this, because one of the concerns (detailed in the Law Commission Consultation Paper) is that such payments could lead to the commodification or sale of children. Therefore, it was illuminating to be able to ask children with experience of surrogacy in their lives about this issue to consider the extent to which their views reflect those in the debates.

Topic Three was about origin information.

We asked whether children born through surrogacy should know who their surrogate is, whether they should know if the surrogacy was a straight or host arrangement and whether they should know if gamete donation was used. If they thought it was important, we asked at what age children should be told and who should tell them.

The debate about access and disclosure of origin information has historically focused on donor conception, with anonymity laws lifted in 2005. The issue of disclosure of origin information has not had as much attention in the context of surrogacy; this is likely because in domestic surrogacy arrangements, the families often have contact before and after the birth, unlike in the case of (unknown) donor conception.

Nonetheless, the Law Commission addressed this issue in its 2019 paper, proposing a Surrogacy Register which would record details about the surrogate, intended parents and any gamete donors. Furthermore, a question which is open to debate is whether such records should state if the surrogacy was straight or host, in order to ensure children know whether there is a genetic connection between them and the surrogate.

This ties in with ongoing debates about the extent to which there is a “right to know” about one’s genetic origins and with recent developments suggesting a move towards increased openness in donor conception, involving disclosure of donor information to children from a young age.

Asking children and young people these questions is important in understanding how they relate to information about the surrogacy arrangement, and how that in turn relates to their views on the legal regulation of information disclosure.

What is next for Children’s Voices in Surrogacy Law?

We aim to produce a report detailing the findings from the focus groups, and an animated version. We are digitising the artistic contributions into a “Digital Wall”, which will be showcased at a conference in November 2022 called Future Directions in Surrogacy Law. We are hosting a “Young Person’s Panel” at this conference where children aged 16-18 can share their views.

There is still a chance to be involved! We have some places to fill at the upcoming Young Person’s Panel in November for 16-18 year olds! We are collecting contributions for the Digital Art Wall (drawings, paintings, collages, poetry etc) up to the end of September!

The theme is “What does surrogacy mean to me?”

Why is this important?

We are thoroughly enjoying hearing from children and young people! They have important views, based on their real-life experience of surrogacy. They can give insights into how surrogacy is relevant during childhood, so that law reform and debates are not always based on adult issues and perspectives. They allow us to think differently about things or think about things that we, as adults, have never thought about before. We believe that these views should be heard, collected, and channelled into any reform agendas in the area of surrogacy law!

So, if you want to speak to your children about being involved or want to know more, see more on our website or email us on cvsl@leicester.ac.uk

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