Back to basics with testamentary capacity
I recently attended the conference "Surrogacy in the 21st Century: Rethinking assumptions, reforming law" organised by Dr Kirsty Horsey from the University of Kent. She has been part of a working group on surrogacy law reform, who published a report last November 2015 which sparked the ideas for the conference.
There was a fantastic line up of speakers who talked about the changes in attitude to surrogacy in the last 30 years and the desperate need for law reform. They debated a number of issues including: payments to surrogates, pre conception agreements, pre-registration of parental orders, birth certificates and the psychological effects of surrogacy. In this blog, I look at some of the themes discussed and key points from some of the speakers.
A call for reform
Baroness Mary Warnock OBE, who chaired the committee of inquiry into human fertilisation and embryology and which led to the first major pieces of legislation on surrogacy and assisted conception in 1984 and 1990, spoke first. She began by apologising for being so negative about surrogacy when the inquiry was carried out and recognised that society was more accustomed now to the different ways in which people can have a family. Baroness Warnock acknowledged that the law was out of date and needed simplifying to avoid delay for both commissioning parents and surrogates and to protect the best interests of children. She also felt that commercial surrogacy should continue to be banned in the UK.
We heard from Professor Susan Golombok who is the Director of the Centre for Family Research at the University of Cambridge. Professor Golombok shared the results of research which has been on-going since the start of the millennium and which followed the paths of a number of families who have had children naturally and using assisted reproductive technologies, including surrogacy. The project involved a series of meetings with parents and children at different stages of a child’s development. The study was more in depth than I can illustrate here but overall results showed that children born following a surrogacy arrangement showed more positive relationships and a higher level of psychological adjustment than children born in natural or donor families.
Professor Margot Brazier followed with an emphatic talk: "’Jam tomorrow’ will not do" in which she explained why reform of the law relating to surrogacy was needed now (not tomorrow). She explained that the available data on surrogacy is still very thin and that some surrogacy arrangements, following which parents never apply for parental orders, are happening under the radar. Professor Brazier referred to children born this way as "nobodies babies" when they live with intended parents who, without a parental order, are not their legal parents.
Professor Brazier also spoke of the lack of understanding of surrogacy in the 1970s and 80s and how no-one expected the practice to grow in the way it has. She said that the availability abroad of enforceable contracts and the freedom to pay surrogates has encouraged some intended parents into international surrogacy arrangements. She described surrogacy as “a gift without price" and explained that couples should be discouraged from entering overseas surrogacy arrangements by making proper legal reforms in the UK.
In her suggestions for reform, Professor Brazier wanted to see a frontloaded process including: preconception agreements setting out parties’ intentions in respect of the many important decisions which need to be made; and applications for parental orders prior to a child’s birth which can be finalised immediately afterwards.
Differences of opinion
We also heard from surrogates, intended parents and representatives from COTS, Surrogacy UK and Brilliant Beginnings. For me, the most striking part of those discussions was the differences of opinion between what might be considered a similar group of people. Kim Cotton at COTS spoke of surrogacy creating parents and families, rather than just children. She thought that surrogates should be paid for their services, and compared them to the doctors and fertility clinics who receive a fee for their contribution to domestic surrogacy arrangements. She also thought that surrogacy as a concept should be introduced in primary school education so that children and their families are taught and given the chance to understand it early. The members of Surrogacy UK talked of the 'friends first' ethos at the organisation which meant that surrogates and intended parents should get to know one another before embarking on such an important journey together. They felt that altruism in surrogacy was fundamental and were opposed to the idea that surrogates should be paid more than reasonable expenses.
The surrogates (who did not like being referred to as surrogate mothers) were uncomfortable about being the legal parent on birth and were clear that they were not the children's mothers. They also spoke with disappointment at the fact that legal parentage takes so long to redress through the parental order process.
What did unite the panellists was that child centred reform which improved access to surrogacy in the UK was required urgently. They wanted to see pre-birth registration of parental orders and felt that this would give children their true identity immediately on birth.
The panel and the lawyers in the group (we heard from Professor Emily Jackson, Natalie Gamble and Colin Rogerson) sought to dispel the misconception that surrogates can or do just decide to keep the child. As with any decision affecting where a child will live, the child's welfare is the court's paramount consideration.
A vision for the future of surrogacy in England & Wales
Final suggestions for reform included allowing single parents to apply for parental orders to bring surrogacy law in line with reality and also for those who have used double donation (one of the criteria for a parental order is that at least one of the intended parents has to have a genetic connection to the child, which means that couples who both have fertility issues are not eligible to apply). Colin Rogerson explored whether an international convention on surrogacy was likely but said that, given the starkly different approach to surrogacy across the world, an agreed uniform approach is unlikely to be achievable. Instead, he said that a convention on international recognition might be more realistic. At the moment, even if a couple are recognised as legal parents in the country in which a child is born (and the surrogate is not therefore the legal mother in that jurisdiction), this is not recognised here under English Law. This is why parents have to make an application for a parental order which involves the surrogate, who may not be the legal mother in their own country, signing an English form called an ‘Agreement to the making of a parental order in respect of my child’. The absence of international recognition can make the process confusing and time consuming for parents, surrogates and the children.
Surrogacy can be full of potential pitfalls and we recommend you spend time researching, reading relevant literature, speaking to others who have had a child through surrogacy and engaging a specialist lawyer to help you to understand the legal issues.
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