Doubts Cast Over Recommended Pick For UK Surrogacy Regulator
Baby in maternity ward, London (UK Stock Images Ltd / Alamy Stock Photo)
4 min read
Doubts have been cast over the Law Commission’s recommendation for the Human Fertilisation and Embryology Authority (HFEA) to be the UK surrogacy regulator, PoliticsHome can reveal.
The HFEA, which currently regulates the use of gametes and embryos in fertility treatment and research, was picked out as being best-placed to regulate surrogacy in a report released last year.
The government is currently considering whether to take up recommendations put forward by the Law Commission, which put forward a number of proposals that would overhaul UK surrogacy law.
The reforms would see ‘intended parents’ become legal parents from birth and open advertising for surrogate mothers and intended parents legalised.
Surrogacy agreements – which would remain non-binding – would be overseen and supported by regulated surrogacy organisations (RSOs) that would in turn be regulated by the HFEA.
However, comments made by the HFEA in an interview with The House magazine cast doubts over the suitability of the fertility clinics regulator to its potential new role.
HFEA director of strategy and corporate affairs Clare Ettinghausen said: “I don’t think we’d ever be on the barricades asking for surrogacy to be something that we would regulate.
“However, in the economic climate, with our eyes wide open, we know that if there is going to be a regulator, it’s going to come to us.”
She added: “I suppose we're – what's the word? – ‘willing participants’, but we wouldn't have necessarily gone to campaign to be the surrogacy regulator.”
The HFEA’s expertise lies in regulating and inspecting medical facilities rather than overseeing non-profit organisations.
Ettinghausen suggested regulating surrogacy organisations would be “much more similar” to the work of the Charity Commission than that of the HFEA.
“There was this idea that, ‘Well, you've regulated clinics, you've got an established code of practice – you just lift and shift that on surrogacy.’ But I don't think it's as easy as that,” the HFEA director added.
She made clear that the HFEA would need extra resources to take on a new role as the surrogacy regulator. The body would have to expand the workforce to include policy and legal development professionals, build inspector training resources, and develop a code of practice.
“We don't have that expertise at all, and it's something we would definitely either have to train existing staff or find new people to be able to do,” Ettinghausen said.
“I do worry about just saying, ‘It’s a read across – you've been inspecting fertility clinics and embryo research centres, therefore you can inspect a not-for-profit organisation.’ That's a completely different type of entity.”
Professor Nicholas Hopkins, a Law Commissioner who worked on the surrogacy recommendations, denied that the HFEA would be poorly suited to the surrogacy regulator role.
“It’s a role that we understand through our engagement they are happy in principle to undertake, and certainly very well-placed to undertake,” he said, adding that the regulator “was always going to be the HFEA”.
Surrogacy is currently legal in the United Kingdom, but only in certain situations. Open advertising for surrogate mothers is not allowed, for example. When the baby is born, the surrogate mother is their legal parent – a switch to the intended parents can only be made after birth, via a ‘parental order’.
In March 2023 the Law Commission published a report and draft legislation in an effort to “amend the law to ensure that it's working in the best interest of all of those involved”, according to Hopkins.
The report has only received an interim response from the government so far, as the last administration did not make parliamentary time for the proposals to be taken forward.
The House understands that the minister responsible, Baroness Merron, plans to meet with the Law Commission in the next few weeks.
A Department of Health and Social Care spokesperson said: “We are considering the Law Commission’s report and will publish our response in due course.”
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