Surrogacy shake up in UK would create uneven treatment for birth mothers

Surrogacy, where a woman agrees to carry and give birth to a child for another person or couple to raise, is growing in popularity. There aren’t any comprehensive figures on the number of cases (partly because some surrogacy arrangements are made informally) but it’s clear it’s something more and more couples and individuals are considering.

In the UK, surrogacy laws go back to the 1980s – and are long overdue an update. This is why the Law Commission – which keeps the law under review and recommends reform where it’s needed – has proposed changes to the law that aim to make the process smoother and more secure for everyone involved.

Surrogacy laws vary from country to country, but under the law currently in the UK, the woman who gives birth to a child is always the legal parent at first. However, under the new surrogacy bill, couples or individuals using a surrogate would be the child’s legal parents right from the moment of birth. This change would put UK surrogacy law out of line with UK adoption laws in a concerning way.

Currently, all women who give birth in the UK have the same default rights to the child. This is regardless of whether they’re planning to give the child up for adoption or surrogacy – and whether they’ve used their own egg, a donor’s, or the would-be mother’s egg. But the new bill would create a disparity in how we treat birth mothers in surrogacy cases.

Here’s why

Under the current system, the so-called intending parents – the ones using a surrogate to have a baby – apply for what’s known as a parental order six weeks after the child’s birth. This transfers legal parenthood from the surrogate (and her husband or civil partner, if she has one) to the intended parents.

This process can be lengthy: on average it’s around six months, but it can take up to a year in some cases. And during this time, the surrogate remains the legal mother – which can cause issues in medical emergencies.

Under the proposed new system the need for a parental order is scrapped: the intending parents would have legal parental rights from the moment the child is born. If the surrogate changes her mind and wants to keep the baby, she would have up to six weeks after the birth to apply for a parental order herself. But the intending parents would still retain the legal status they gained when the child was born.

In such a case, the courts would then have to determine whether the intending parents should keep the child, or if the surrogate should be given parental status - so, the reverse of what the UK has at the moment.

Adoption v surrogacy

Pre-birth adoption contracts are illegal in the UK – and in fact, across most of the world. Even when a pregnant woman firmly intends to give up the child for adoption, she can only legally consent to this six weeks after the birth – just like surrogates under the current law.

The six-week period is an international standard which is meant to make sure that the birth mother’s consent to adoption is freely given. This allows some time to recover from childbirth and conditions like post-partum depression, which might make the decision more difficult.

Birth parents have a right to change their minds about adoption and legally this trumps the grief and disappointment prospective adoptive parents feel at being told the birth mother has decided to keep the baby. But in contrast, the new surrogacy proposals could make it harder for surrogate mothers who no longer want to give up their baby.

It seems that very few surrogates change their mind and want to keep the child. The same is true in adoption, where only a small percentage of women change their minds after giving birth. But their right to do so is fundamentally protected in both instances - for now. Under the proposed changes this may not still be the case.

‘It’s not the same’

A major difference between adoption and surrogacy is that in surrogacy, one or both of the intending parents are related to the child genetically. But it doesn’t make sense from an ethical perspective to think that this should change the legal rights of the birth mother.

Indeed, as it currently stands if you give birth to a child, you’re always considered the legal mother in UK law – even when using a donated egg. The new proposals would change this blanket rule to make an exception in the case of surrogacy.

But if childbirth is an important enough connection to keep these default rights in the case of adoption, then why not in surrogacy? And if people who sign up to adopt a child accept the risk that a pregnant woman might change her mind about keeping the baby, why not in surrogacy?

Turning parenthood into a contractual agreement may seem like a common-sense fix to surrogacy dilemmas. But if surrogacy is made to be more about contracts, it might lead to risky situations with surrogates treated unfairly. And ethically, surely all birth mothers should have the same legal protection, regardless of their plans after the baby is born.

Teresa Baron does not work for, consult, own shares in or receive funding from any company or organisation that would benefit from this article, and has disclosed no relevant affiliations beyond their academic appointment.