Just before Parliament broke for the Easter recess, very quietly and without much fanfare, the Law Commission for England and Wales, with the Scottish Law Commission, announced the publication of the report of their 2019 consultation “Building Families through Surrogacy”, and, in a departure from usual practice, produced a draft bill to accompany their recommendations.

The Commissions have proposed the first significant reform to domestic surrogacy legislation since the Surrogacy Arrangements Act of 1985; proposals which would see the balance of power in a surrogacy arrangement tipped away from the surrogate mother, towards the commissioning parents. This is an unusual move for the Law Commissions, which usually confine themselves to recommending tweaks and adjustments to some of our more archaic laws. This time they have taken on a role usually reserved for select committees and government departments: advocating wholesale reform of an area of law and practice, and producing a draft bill to go with it; something which is generally the preserve of elected politicians. 

Surrogacy is the process by which a woman becomes pregnant, carries and gives birth to a baby on behalf of others. The practice, in this country and abroad, can include a woman using her own egg, meaning at the point of handover, a baby is being given away from its genetic mother. While it is not permitted to pay a woman to do this in Britain, a generous “expenses” regime currently sees women receiving upwards of £10,000 in many cases, across the duration of the pregnancy, and many surrogate mothers are unknown to the commissioning couple or individual before being informally introduced by a surrogacy agency. Currently, surrogate mothers are listed on the birth certificate as their child’s mother; this remains the case until a parental order is granted, and a new birth certificate can be issued; she retains her parental rights until the granting of a parental order by the Family Court, which can take up to six months; giving her longer after the birth to consider how she feels about the arrangement. Meanwhile, it is permitted to bring children into this country who have been conceived and carried through commercial surrogacy arrangements abroad, despite commercial surrogacy being illegal in the UK, and a practice which is viewed by many as exploitative and unethical. 

The new proposals include reducing the time a woman has to change her mind about giving up her parental rights, and not automatically seeking her consent again to the arrangement at the time of delivery. They allow for open advertising for surrogate mothers, a minimum age of just 21 for surrogate mothers and 18 for commissioning parents. Additionally, there is no requirement for the woman to have previously given birth, and the mother, in the Commission’s “preferred model” would not be named on the child’s birth certificate. The proposals would create Regulated Surrogacy Organisations (likely the current agencies), giving RSOs the power to admit couples or individuals on to a new “surrogacy pathway”. In stark contrast to UK adoption laws, surrogacy arrangements on the pathway would not be subject to social work supervision or oversight by the Family Court. The Government is expected to deliver its response to the proposals by the end of this month.

If this is the first you’re hearing about this, don’t blame yourself. Even amongst those who pay close attention to politics and women’s rights, knowledge of surrogacy outside of the community of pro-surrogacy activists, agencies and family lawyers, is limited. There is however, one additional committed group, who have been monitoring developments with both interest and trepidation. 

Reminiscent of when self-identification of gender was first mooted by the House of Commons Women and Equalities select committee, way back in another world called 2016, a band of unpaid, unfunded women have come together to oppose the Law Commission’s draft bill. This is not to say feminists don’t believe reform of the law is required: many believe it needs significant tightening; just that the changes proposed by the Law Commissions are the wrong ones, and potentially deeply injurious to women. 

Despite … women standing as the ones with the most to lose from such reforms, they were overlooked, and disregarded

The parallels between the lack of consultation with women on the issue of self-identification of gender, and the minimal involvement of women in the Law Commission’s proposals are obvious. Despite, in both cases, women standing as the ones with the most to lose from such reforms, they were overlooked, and disregarded. The Law Commissions themselves have admitted “over half of the responses we received were from consultees who opposed most or all of our provisional proposals for reform, and advocated instead for surrogacy to be prohibited”. The organisation Women’s Place UK said in 2019 that “there is no evidence that the Law Commissions have made any meaningful attempt to gather the views of surrogate mothers, particularly those who have regretted the experience or withdrawn from a surrogacy arrangement. In formulating these proposed reforms, the Law Commissions have failed to consult with women’s groups or groups that campaign on issues relating to pregnancy and maternity. The consultation process has not been conducted in a way that is accessible to many, particularly women from lower socio-economic backgrounds, or women whose first language is not English. Surrogate mothers or potential surrogate mothers are more likely to hail from these backgrounds.” 

But women are better organised now than in 2016; a new generation of feminists, galvanised by the debate on sex and gender, as well as a number of new campaigning organisations which have been founded in the last seven years, are ready and waiting to pounce on issues as they arise which may negatively impact women and children. 

Last month, Baroness Hunt of Bethnal Green, former CEO of Stonewall, was interviewed by Attitude magazine:

The topic at the top of her list moving forward is surrogacy: “It’s going to be a big theme for me because the Law Commission has recommended reform of surrogacy law, and that hasn’t been picked up here yet. It needs to be, really. That will have a huge impact on lots of men who are wanting to start families. So that’s on my mind.” 

The potential impact on women and children appears to have escaped Baroness Hunt’s notice. Not for the first time. 

Given the propensity of some activists to overlook the existence of women, much less our needs, it’s not unimaginable that many of these people have assumed they will have surrogacy reform all their own way. If the sex and gender debate is anything to go by, we may conclude that is not a safe assumption.