Social media adverts urging young women to become surrogate mothers could be allowed under Law Commission proposals.
But the government’s fertility regulator has warned that the plans could lead to “significant cultural change” and “perhaps criticism”.
It is currently against the law to advertise for a surrogate or pay more than expenses to carry a baby.
The Law Commission said its proposals would better protect both sides in a surrogacy relationship.
In 2018 the government asked the Law Commission of England and Wales and the Scottish Law Commission, both independent bodies, to recommend changes to surrogacy law.
In England and Wales, the number of parental orders – which transfer legal responsibility from the surrogate to the “intended” parents after birth – has tripled from 121 in 2011 to 368 in 2018. The real number of surrogacy arrangements is almost certainly far higher, as there is no obligation to seek an order.
Many of those children were born to women overseas in countries like the USA and Ukraine where surrogacy is fully commercialised.
Within the UK itself surrogacy is only legal on a not-for-profit basis.
In a joint consultation which closed in October 2019, commissioners made a series of provisional proposals, including plans to give genetic parents legal responsibility for a baby at birth rather than having to wait for a court ruling.
All advertising restrictions would be lifted and law firms would be allowed to charge to advise on or negotiate a surrogacy before pregnancy.
The most controversial question – payments to surrogates – was left open with the public asked for views on whether surrogates should receive more than just expenses – typically around £15,000.
The changes would apply only to surrogacy within Britain, not to international arrangements where the surrogate lives overseas.
Many organisations and individuals involved in surrogacy have welcomed the proposals.
But a coalition of women’s groups have written to the Law Commission saying they weren’t adequately consulted and arguing the changes will put more women at risk of exploitation.
Family court data suggests few arrangements result in the relationship between the surrogate and intended parents breaking down. But difficult cases do exist.
“Anna” agreed to carry a baby for a friend.
She went to a clinic, and was implanted with two embryos and became pregnant with twins.
She said the intended mother then became hostile.
“I felt she was experiencing jealousy towards me,” she explained.
The birth was traumatic. One of the twins was starved of oxygen and an investigation by the hospital into medical failings took two years to complete.
“It felt like I didn’t receive any support at all,” said Anna. “I was left to relive the traumatic birth over and over and over again for two years.”
At the end of the process, she said she was left incontinent with damaged abdominal muscles and diagnosed with post-traumatic stress disorder.
She would now like to see all forms of surrogacy banned, as it is in countries like France, Germany and Sweden.
In a response to the consultation seen by the Victoria Derbyshire programme, fertility regulator the Human Fertilisation and Embryology Authority (HFEA), said: “The removal of the ban on advertising in respect of surrogacy might constitute a significant cultural change for the UK, which could attract considerable public interest and perhaps criticism.”
Critics of the Law Commission’s approach argue it would be “entirely possible” that vulnerable groups of women could be targeted by social media adverts.
“I can absolutely see a situation where students see this as a good way of paying off debts,” said Beccy Shortt from the End Violence Against Women coalition (EVAW).
Women as young as 18 who have not previously had a baby would be permitted to enter surrogacy arrangements under the Law Commission’s proposals and no limits are planned on the number of times a woman may act as a surrogate.
“We think this lays the foundation for more commercialised, more contractual way of looking at surrogacy,” said Ms Shortt.
“We would ask the Law Commission to go back to the drawing board and consult meaningfully with women’s organisations and the medical community to look at the long-term mental health effects of surrogacy.”
A Freedom of Information request found that, before launching its public consultation, the Law Commission did not meet any women’s rights groups.
It did meet separately with 11 organisations that have a commercial interest in surrogacy, including US-based and London law firms – though it’s understood at least some of the meetings were set up by the Law Commission to better understand how the law currently works and technical aspects of the planned law changes.
It also had two meetings with Brilliant Beginnings, a not-for-profit British agency that charges £15,300 to match prospective parents with surrogates.
The fees cover costs such as advice from a law firm owned by Natalie Gamble, who is also a co-owner and co-director of Brilliant Beginnings.
She said she set up the agency to make surrogacy safer and better supported and added that the fees also cover the cost of a psychological assessment plus screening and counselling, which can last two years.
‘No intention’ of liberalising surrogacy
Under the Law Commission proposals, agencies that offer surrogate matching services would have to remain non-profit making, though there is no cap on the wages that staff can be paid.
Prof Nick Hopkins from the Law Commission said the plans were designed to better protect both sides of an arrangement, and include counselling and legal advice for the surrogate.
“Our intention is not to liberalise surrogacy, our intention is not to increase surrogacy,” he told the Victoria Derbyshire Programme.
“Our intention is to provide a safe and effective legal framework for those who are entering into surrogacy arrangements and to ensure children born through those arrangements, women who become surrogates and the intended parents are properly protected by the law.”
The Law Commission will now examine the consultation responses and is expected to publish a draft bill in 2021.
It will then be up to ministers to draw up a new law to replace the 1985 Surrogacy Arrangements Act.