Dr. Kirsty Horsey:

I wish everyone a good afternoon. I thank the committee inviting me to speak with it today. I am a legal academic based in England at the University of Kent, where I have been conducting research on surrogacy since 1998. I am currently away from the university working a two-year secondment at the London Women’s Clinic on Harley Street as a senior research associate with an expertise in socio-legal aspects of fertility treatments and surrogacy. As part of that, I am currently undertaking a project on surrogacy looking at outcomes of the surrogacy treatments undertaken in our clinics, as well as a more socio-legal focus on the views and experiences of surrogates and intended parents who were treated at London Women’s Clinic via detailed online surveys and follow-up interviews.

As I understand it, the current law in the UK differs from Ireland - even the proposed new domestic legislation currently being considered - in a number of ways. While both recognise the surrogate as the legal mother at birth, in Ireland, only the biological father, whether in a heterosexual or same-sex couple, may acquire legal parenthood following surrogacy, with the other intended parent only being able to acquire guardianship status. In the UK, a couple may jointly apply for a parental order transferring legal parenthood from them to the surrogate and often her spouse or partner, provided some conditions are met, for example, that one of them must be genetically related to the child. A single person using surrogacy may also now apply for a parental order if he or she is genetically related to the child.

The new legislation proposes a kind of parental order system in Ireland but this would be limited to fully domestic, altruistic surrogacy arrangements. In the UK, while the current law states that surrogacy that takes place domestically should be altruistic, parental orders are not limited in this way. Intended parents who access international surrogacy, commercial or otherwise, in overseas jurisdictions may still, and should, apply for a parental order, subject to the requirements laid out in law. If the arrangement was commercial, the court has the power to retrospectively authorise any payments made, including to the surrogate, in the best interests of the child, whose interests are the paramount consideration. Parental orders have been described by the courts as transformative and the correct way to determine a child’s or family’s identity.

The new legislation does not provide for a way for intended parents of children already born through surrogacy, international or otherwise, to have a means of acquiring joint legal parenthood. In the UK, though the legislation stipulates that parental orders should be applied for within six months of the birth of the child, it has been known for many years that this limit is ineffective and contrary to children’s bests interests. A recent case awarded a parental order in respect of an adult born via surrogacy.

Each time there have been changes to the list of who is eligible to apply for an order, there has been a retrospective window in which those with children already born could apply, for example, the extension of eligibility to same-sex couples and those in enduring relationships in 2008 and to single applicants in 2019.

In addition, the law in the UK is currently under review by the Law Commission of England and Wales and the Scottish Law Commission. They published their joint surrogacy law reform proposals in June 2019 followed by a public consultation that ran until October 2019. They are now in the policy development stage considering those responses. Their final report is expected this autumn and will recommend new stand-alone surrogacy legislation and present the Government with a draft Bill. This is likely to modernise and liberalise the law on surrogacy in the UK further.

In particular, key proposals in the original consultation document include a new pathway to parenthood whereby intending parents who follow a particular route to surrogacy would automatically acquire legal parenthood at birth, subject to the surrogate’s right to object for a period specified in law. Safeguards built into the pathway include the parties getting independent legal advice and counselling before a written agreement is entered into, having the agreement overseen by a recognised surrogacy organisation or licensed clinic, medical and criminal record checks being undertaken and an assessment of the welfare of the potential child. All of these should occur before conception is attempted.

For those who do not fit the proposed pathway, the parental order route would remain. This would include international surrogacy arrangements, whether commercial or altruistic, and do-it-yourself, DIY, arrangements.

This would mean that the court would scrutinise the arrangements, presumably including checks by the Children and Family Court Advisory and Support Service, CAFCASS, that the child's best interests are being met. It is also proposed that a national surrogacy register be created, where information about the intended parents, surrogate and any egg or sperm donors, both on the pathway and parental order route, is collated. Similar to donor conception in the UK, children born through surrogacy could have access to non-identifying information at the age of 16 and to identifying information at the age of 18.

In terms of regulating international surrogacy, problematic aspects of international surrogacy, as identified by the law commissions, include aspects of nationality or citizenship, especially where there is a conflict of law, immigration, depending on the country of birth, and legal parenthood, which in the UK is determined by the Human Fertilisation and Embryology Act 2008, notwithstanding where the child was born. As previously indicated, international surrogacy arrangements would fall outside of the proposed new pathway. However, the Law Commissions also provisionally proposed that the law should provide the ability to recognise the status of legal parenthood acquired by intended parents in other countries automatically, without the need to apply for a parental order. This should be "on an individual "country by country" basis when it has been established by the government that the laws and practices of the country in question provide protection for the welfare of the child, and against the exploitation of the surrogate".

There have been some proposals to try to regulate surrogacy internationally, though given the disparity of approaches to surrogacy in nations around the world, it would seem unlikely that this could ever be achieved. Thus, it seems better to try to seek a way for national law to do the best it can in respect of overseas arrangements, for example, as proposed earlier, alongside supporting best-practice surrogacy domestically, so as to encourage fewer people to go overseas.

While I am not pretending that the law in the UK is perfect, it is the case that international surrogacy arrangements are currently accommodated. Proposals made by the Law Commissions may have the effect of giving intended parents more confidence in undertaking domestic surrogacy, thus reducing the number of people seeking surrogacy overseas. However, it is unlikely to be the case that all overseas surrogacy ceases, but building in a mechanism to automatically recognise legal parenthood for intended parents who travel to countries where surrogacy services protect the best interests of women and children may help, by encouraging people to seek out these destinations over less ethically-sound ones. It strikes me that Ireland could consider similar proposals, as well as stand-alone legislation on surrogacy, so as not to delay the remainder of the assisted human reproduction, AHR, Bill further. Within my own research I have encountered intended parents from Ireland who have entered arrangements with surrogates in the UK. It would seem strange if this, at least, was not a route Irish intended parents were able to take.