The Impact of Real People on (potential) Surrogacy Law Reform

Kirsty Horsey

I’ve been researching surrogacy for over 20 years now and, in that time, I’ve been privileged to work with those who know it best – the people who have done it, and those who have supported them through their journeys. An academic lawyer by background, I’ve known for a long time (at least since my PhD) that surrogacy laws need reforming, and have written much (including the PhD!) on exactly that topic. But academic articles and chapters in books only go so far – they’re mainly read by other academics or students and, although that can bring about debate, it’s not the kind of debate that usually results in the law being changed.

So what then?

Fortunately, in 2015, I was invited by trustees of SurrogacyUK (SUK) to work with them as part of a Working Group on Surrogacy Law Reform. This was initiated after a bit of an upsurge in (not just academic) interest in surrogacy in 2014-15: there was a debate in parliament led by then MP Jessica Lee, and later comments from a judge published in The Guardian under the headline ‘Unregistered surrogate-born children creating ‘legal timebomb’ – asserting the idea that there were potentially hundreds of children born through surrogacy without legal connection to their (intended) parents (IPs), as many (who knows how many) weren’t getting parental orders – either because they didn’t know they had to or they thought they didn’t need to. Much of this had evolved from IPs going abroad for surrogacy to places where they would be listed on the birth certificate – sometimes not knowing that having such a certificate didn’t equate to legal parenthood (and all that entails) upon return to the UK. (And we’re still seeing stark examples of this, such as the case earlier this year where a parental order was granted in respect of a surrogacy-born adult!)

The Working Group involved lots of background research into the ‘landscape’ of surrogacy in the UK at that time, and running a detailed survey to gauge what was happening currently and views on certain aspects of surrogacy law (e.g. on legal parenthood or expenses). We got 434 responses in total, including from 111 surrogates and 206 IPs – the first time we had heard from people with actual lived experience of surrogacy in such numbers and representing people who had worked within not only SUK, but also with COTS or Brilliant Beginnings, or in ‘indy’ arrangements. We learnt much of what we already suspected: those with lived experience worked within the law but didn’t necessarily agree with all of it. Expenses reimbursed to surrogates were realistic, but not massive. The biggest source of dissatisfaction was about legal parenthood – while it might be expected from IPs, surrogates told us clearly that they did not want to be the legal mother of children they carried.

From the data in the survey, along with what we already knew, we published a report, ‘Surrogacy in the UK: Myth Busting and Reform’, at the end of 2015.

Little did we know at the time what would happen, but our report got picked up in wide circles, including the Department of Health – and thankfully, despite everything else (including reshuffles), didn’t get derailed by Brexit! Though they were interested already, the Law Commissions were able to use the data we reported in their public consultation into surrogacy, and an interested MP asked to work with us and get the message out. This led to the eventual creation of an All-Party Parliamentary Group (APPG) on Surrogacy, which has since produced its own report following evidence sessions, again with people with lived experience (including lawyers, Cafcass officers and other professionals who work with surrogacy). There was a debate on surrogacy and law reform led by Baroness Barker in the House of Lords in December 2016, which also kept the momentum going.

We did a further survey (getting even higher numbers of respondents) and published another report, ‘Surrogacy in the UK: Further Evidence for Reform’ in 2018, at which time we knew the Law Commissions were working on surrogacy. They launched their public consultation in spring 2019 and it closed that October. The recommendations in the initial consultation included a way for IPs to become legal parents from birth, if they followed a particular ‘pathway to parenthood’, as well as potential regulation of recognised surrogacy organisations. Since then, they (with a bit of an interruption by a global pandemic!) have been working on their response to the consultation and we expect that – along with a draft new surrogacy law – later this autumn. Exciting times!

In the meantime, both academic and non-academic work continues – keeping surrogacy and the issues it raises (and the need for reforms) in both academic and non-academic memories. A further debate took place in parliament in January 2020, led by Andrew Percy MP, chair of the APPG on Surrogacy. Brilliant Beginnings (who have also campaigned for law reform) collaborated with an academic to look at why some of their IPs chose to go to the US for surrogacy rather than staying in the UK, and how they navigated that journey. Newcomer on the scene, My Surrogacy Journey, which launched in February 2021, partnered with me on research on Surrogacy Trends for UK Nationals, looking at the numbers of surrogacy arrangements happening, who they were between, where people lived, where they went for surrogacy etc.

And now – when change looks like it could possibly be on the horizon – I’m working away from my academic base at the University of Kent and in a clinical setting as a senior research associate at London Women’s Clinic (LWC). LWC has a history of collaborating with researchers to study different ways of forming families (just published, for example, a couple of studies undertaken with the amazing Cambridge Centre for Family Research on shared biological motherhood). I’ve been looking at surrogacy within the clinic, and we’ve already published on clinical outcomes and trends over an eight-year period. Soon we’ll publish the results of two surveys, one with surrogates who were treated at LWC and one with IPs. I followed these up with interviews and am working on writing these up now – all of which it is hoped will feed into the inevitable public and – hopefully – parliamentary debates to follow the Law Commissions’ report.

What about the children?

A criticism often launched at researchers like me, and the organisations I work with, is ‘what about the children?’ It’s all very well hearing what adults think about surrogacy, but it’s not really them who are the most important people in all this. Many agree – and to that end I’m involved in a collaborative project with researchers Dr Katherine Wade from the University of Leicester and Ms Zaina Mahmoud from Exeter University/LWC called ‘Children’s Voices in Surrogacy Law’. We want to find out what children in two groups (those born from surrogacy and those whose mum or other family member was a surrogate) think about surrogacy, how they experience and understand it in their own lives, and what they think about the current law. So far, we have held focus groups with children and young people aged between 8 and 18 and we can’t wait to analyse the results! We’re also collecting contributions for a ‘Digital Art Wall’, where children who fall into either category can send in art (drawings, paintings, collage, poetry, photo montage or anything creative) on the theme ‘What surrogacy means to me’, which we will digitise for a looping display at a conference we’re holding (Future Directions in Surrogacy Law) in late November. At that conference – as well as the usual academics, we have lawyers, judges, parents through surrogacy, surrogates, policymakers and more, but crucially, we have young people (age 16-18) and will hear their voices in this setting for the first time!

Interested? What can I do to find out more or get involved?

Well, apart from clicking through all the links provided in this blog, if you’re interested in supporting law reform in surrogacy, you could:

  • Write to or visit your MP, tell them your story, encourage them to find out more and, if they support change, to join the APPG on Surrogacy – when the debates hit Parliament (fingers crossed!) then MPs who are engaged and know what they’re talking about will be crucial.
  • If you’re working with or are a member of a surrogacy organisation, see what they’re doing to advance change. Get on board!
  • If you have children that fall in the categories of the Children’s Voices in Surrogacy Law project, have a look at the website and consider getting them to do some artwork for us for our digital wall (any age) or if old enough (16-18) applying to be on our young person’s panel at our conference in November (expenses are paid!) – we have a few spaces left to fill.
  • Share information on your socials about all this stuff! Get people talking! Importantly, when you see misinformation (and there is increasing amounts of that around), challenge it!
  • Get involved in research when you see calls for participants with your specific lived experiences! It’s fundamental that research reflects your experiences accurately.

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