Natalie Smith – Chair of the Surrogacy UK Working Group on Surrogacy Law Reform and Trustee of Surrogacy UK
It was a good night last night. Sitting in the public gallery, myself, other intended parents, surrogates, academics, lawyers and campaigners waited nervously as peers began to debate the question from Baroness Barker ‘to ask Her Majesty’s Government whether they have plans to update the law on surrogacy’. For many of us watching, listening or reading the debate, it is our lives and families that are being scrutinised. As Baroness Barker herself pointed out ‘surrogacy is a subject that suffers greatly from sensationalist journalism and broadcasting’ as well as confusion brought about by the term ‘surrogate mother’ and we are all too used to having to defend something that we are hugely proud of. As the debate unfolded we were moved by the insight, thought and compassion of the speakers. The debate in the House of Lords was positive, compelling and focused on action. It is a huge step forwards in recognising surrogacy as a valued and positive form of family building.
As well as acknowledging that ‘surrogacy has an important role to play in our society, helping to create much-wanted families where that might otherwise not be possible’, there was a tidal wave of support from speakers for progressive reform in line with the recommendations contained within the SUK working group’s landmark report “Surrogacy in the UK, myth busting and reform” authored by Dr Kirsty Horsey at Kent Law School and published last year.
There was consensus – from both speakers and the Minister – that the best way to move forward with reform would be through the Law Commission, whose consultation on whether to take on a project on surrogacy law reform closed on 31st October 2016. Extremely powerful, was the contribution of Lord Mackay of Clashfern who was instrumental in passing the 1990 legislation and who stated that an investigation by the Law Commission would be ‘extremely helpful in getting legislation through’. He argued that an investigation must be thorough, but that in his view it did not need to be long, meaning that things could “progress quite quickly”. For surrogates and intended parents who face daily struggles and frustrations from the current law, this endorsement for a project delivered at pace was critical and we hope that the Government will take this on board as they digest the content of the debate.
As well as a project by the Law Commission, the Government confirmed their plans to enable single people to obtain a parental order via a remedial order that they hope will be introduced in early 2017. This is fantastic news. They also referred to a project to update and disseminate guidance for the public and healthcare professionals after Easter 2017 – a project that Surrogacy UK is part of.
There was also focus on the recent case Re AB (Surrogacy: Consent), where twins have been left in legal limbo following a lack of consent from the surrogate and her partner to the making of parental orders. It is critical that consent from the surrogate remains a key part of the surrogacy process. However, when consent is withheld unreasonably or where refusal to consent is at odds with the best interests of a child, it must be left to the judge to make a child centred decision. As surrogates writing to The Times about this case today comment, “it is a myth that surrogates would want a system in place that enables us to change our minds and keep the baby. We always know that the babies we carry are not ours to keep. We would always put the best interest of the babies first and would definitely support a law reform that allows a court to do this”.
There was some discussion over whether this issue could be addressed outside of a Law Commission process. Surrogacy UK would urge the Government to think of the profound impact that the state of legal limbo has on the AB twins – who are now nearly two years old – and their parents, and the vulnerability of the children in this situation in which the judge has stated that the ‘children’s lifelong welfare needs require a parental order to be made’. As Lord Faulks stated ‘the situation is serious’ and all efforts to find an early opportunity to deal with this situation should be taken.
On behalf of Surrogacy UK and our working group, I want to say a huge thank you to everyone that has been involved in the campaign for change. Every single letter, event, article and media story has played a role in creating the swell of support for surrogacy law reform that was heard in the Lords tonight, and in creating a real change in the perception and understanding of surrogacy.
There’s still a lot to do but I believe a project by the Law Commission is imminent. That will result in draft new legislation to be put before parliament. We will be working hard to influence that legislation (its content and timing) and ensure good outcomes for children, parents and surrogates whose lives will be impacted.
Transcript of the debate in full can be read here: – Legal Reform Debate in House of Lords 14th December 2016
15th December 2016.