How reforms to UK surrogacy law could lead to a clash with campaigners

In 1985, young mum Kim Cotton gave birth to a baby girl on behalf of a Swedish couple who could not conceive themselves. Using her own egg, she had inseminated herself with the commissioning father’s sperm. She was paid £6,500 for the arrangement, brokered through a US agency. In so doing, Cotton became the UK’s first commercial surrogate.

Cotton faced fierce backlash from social services and the public when it emerged money had changed hands for Baby Cotton. Within six months, the Surrogacy Arrangements Act was passed to ban commercial surrogacy in the UK.

Today, surrogacy is legal in the United Kingdom, but only in certain situations. Open advertising for surrogate mothers is not allowed, for example. And, crucially, 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’.

I do prepare them because surrogates have never – in most cases – had a miscarriage

Under proposals from the Law Commission, however, all of that could change. So, are we heading towards a more commercial, US-style model of surrogacy? And will the government risk a clash with anti-surrogacy campaigners?

Cotton has expressed regret at never meeting the parents of Baby Cotton, and has spoken of her heartbreak after handing her over. Nonetheless, she went on to give birth to two more babies as a ‘gestational’ surrogate – meaning a donor’s eggs were used – and found these to be much more positive experiences. (The first time, Cotton used her own egg, making her a ‘full’ or ‘traditional’ surrogate.)

In 1988 Cotton established Childlessness Overcome Through Surrogacy (Cots) to help facilitate births through surrogacy. Since its founding, she has helped facilitate surrogacy arrangements involving 1,131 babies.

Nearly 40 years after her first experience of being a surrogate, Cotton is more certain than ever that surrogacy is the purest form of female altruism. “At the end of the day, it’s women helping other women. That’s what it’s supposed to be: a sisterhood,” she says.

Gestational surrogates are three times more likely to experience severe complications during pregnancy, according to research published this year by Queen’s University, in Ontario. Cotton freely admits that Cots – where 99 per cent of surrogacy cases are gestational – is currently seeing miscarriages “left, right and centre”, with two in the past week alone at the time of her interview with The House.

“We do prepare them,” she says of the surrogates who make their arrangements with the help of Cots. “I do prepare them because surrogates have never – in most cases – had a miscarriage. It’s an absolute shock to them because they’re not used to a loss like that. Of course, it’s a double whammy; they feel terrible for themselves, and then they have the guilt of, ‘What have I done wrong? I’ve let my couple down. I’m so sorry. I feel terrible.’”

Does it ever shake her faith in surrogacy? “Oh no, never,” Cotton replies. “I’ve been dealing with surrogacy for almost 40 years now, and I’m passionate about it.”

Asked about the complications that can arise in surrogacy arrangements where the baby is severely disabled, Cotton says: “That’s all part of our agreement session.” This is a talk that takes place before conception. “We don’t really have conflict in it, because they agree it early on. It’s a deal breaker. If we’ve matched a couple, then they find out the surrogate will not terminate a child under any circumstances, they part company.”

There has only been “one slight disagreement” between intended parents and the surrogate, she says, because the intending mother “went into panic mode” when she discovered there could be a complication in the baby’s development. “Unfortunately, that was twins, and one died straight after birth, so one twin was healthy, and the other one didn’t make it.”

In an effort to bring clarity to such potentially ambiguous and delicate situations, the Law Commission took an in-depth look at surrogacy before publishing a final full report and draft legislation in March 2023. Its starting point was acknowledging that surrogacy is “permitted” and “supported by government”, says law commissioner Professor Nicholas Hopkins, so it did not consider whether to ban it altogether.

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. Whether Keir Starmer’s government will be more interested in doing so remains to be seen.

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.”

If the Law Commission proposals get the go-ahead, domestic surrogacy laws will be changed significantly, creating a new “pathway” for surrogacy in the UK. Key reforms include the following.

• Intended parents would be the legal parents of the baby from birth. (Currently they must apply for a parental order at least six weeks after the birth, and within six months.)
• Surrogacy agreements would be overseen and supported by regulated surrogacy organisations (RSOs). These would be regulated by the Human Fertilisation and Embryology Authority (HFEA).
• Only paying the surrogate mother’s expenses – medical and wellbeing costs, those to recoup lost earnings, pregnancy support, and travel – would be permitted. (Currently expenses are not legally defined and do not have to be itemised.)
• The ban on lawyers charging for negotiating and advising on surrogacy agreements would be lifted.
• ‘Matching’ services would be permitted.
• Open advertising by RSOs for intended parents and surrogate mothers would be legal, as would advertising by lawyers and counsellors offering surrogacy-related services.
• The minimum surrogate age would be 21.

There would still be no legally binding surrogacy agreements in the UK – unlike in the US. There, cases are regularly reported in which problems arise when commissioning parents use contracts to micro-manage the surrogate mother’s life during pregnancy and to mandate abortion in certain circumstances.

So, what do surrogacy organisations make of the Law Commission recommendations?

Cotton is concerned that the new rules would further commercialise surrogacy in the UK, particularly in allowing “piranhas” already acting in the space – lawyers, clinics, counsellors – to make money. She suggests it is unfair that the surrogate, who “does the lion’s share of the work and takes all the risks”, must “justify what she’s paid”.

The Law Commission reforms around regulating surrogacy organisations are partly why her agency, Cots, is due to close in 2025. “I don’t have the money,” she says of the new criteria Cots would be forced to meet. Instead, she plans to set up a surrogacy advice line.

Cotton believes the “biggest problem” in surrogacy rules is the current ban on advertising. She admits advertising on Facebook “all the time”, though only on private pages. “Demand is double because now same-sex couples are able to get a parental order. We allowed that to happen. So overnight the demand doubled, but the supply stayed the same – in fact, it’s worse than ever.”

We are an outlier in allowing any form of surrogacy at all

Sarah Jones, chief executive of SurrogacyUK – which, unlike Cots, requires the surrogate to play a role in the baby’s life as they grow up – is enthusiastic about the recommendations.

“The Law Commission did listen to the surrogate voices, and there’s absolutely nothing in the legal reforms that even hints at going towards a commercial model at all,” she says.

“Surrogacy has been going on for decades and decades unregulated, and we’re really lucky that nothing majorly wrong has happened. We touch wood all the time that nothing really, really terrible has happened,” Jones adds.

“There’s nothing tabloid paper-worthy at all in the majority of surrogacy cases. That’s by luck, rather than anything else. Being regulated by someone like the HFEA that can put these mandatory safeguards in place has got to be a good thing.”

Anti-surrogacy organisations, on the other hand, are alarmed by the Law Commission proposals.

Helen Gibson of Surrogacy Concern is concerned that, while expenses would need to be itemised, the new rules would not put a cap on them.

“In 2018 there were five examples of expenses lodged in parental order applications with the family court that reached over £60,000 per pregnancy. We don’t believe anything the surrogacy agencies say about how kind this is; how beautiful and miraculous. It is not altruistic. We think women are being incentivised to do this.”

She is also worried about vetting. Pro-surrogacy campaigners say the Law Commission proposals would strengthen the safeguards, as under the new pathway health and gametes screening, counselling, a pre-conception welfare of the child assessment and a criminal record check would be required. For those who use surrogacy outside of the new pathway, intended parents will still need to apply for a parental order.

Gibson disagrees with that pro-surrogacy view, countering: “The vetting proposed by the Law Commission would not have been much enhanced on what it is now.” She points out that the new pathway would remove the involvement of Children and Family Court Advisory and Support Service (Cafcass) officers and the Family Court, both of which are engaged in the parental order process. Instead, the gatekeepers of the new pathway would be regulated surrogacy organisations, which she claims would have little interest in keeping people off the pathway.

Surrogacy Concern cites data showing that 95 single men have been granted parental orders for babies since UK law changed to allow this in 2019, and the numbers show that increasingly men over 50 and 60 are pursuing surrogacy.

There is no upper age limit for a parental order, which will almost always be granted if there is a genetic link between the child and intended parent. To compare the situation with adoption, while there is no upper age limit there either, agencies look for adopters with the physical and mental energy to care for children until they are adults.

Gibson’s worries extend beyond this. “I am extremely worried that we have created a situation with surrogacy where we are making it easier for predatory men to gain access to children,” she says. Examples of convicted sex offenders becoming fathers via surrogacy form the basis of her concern.

In 2014, a 21-year-old Thai surrogate mother claimed an Australian couple had rejected one of the twins she had for them because the boy was born with Down’s syndrome, in a case that led to Thailand banning commercial surrogacy for foreigners. Amid the outcry, it emerged that the commissioning father, David Farnell in his mid-50s, was a convicted sex offender. The Australian courts ruled that the twin sister should be able to live with him nonetheless, though he was not allowed to be alone with the child.

There’s absolutely nothing in the legal reforms that even hints at going towards a commercial model

A case closer to home took place in 2021 but received no media coverage, being highlighted instead by Lexi Ellingsworth of Stop Surrogacy Now UK. Via a surrogacy arrangement in Columbia, a couple had twins, one of whom sadly died. The baby who survived was brought back to the UK – but was made a ward of the court when it transpired that the 56-year-old non-genetic father who applied for a parental order had convictions for child sex offences. Ultimately, following a psychological and parenting assessment, the Family Division of the High Court ended the wardship.

Another area of concern for Gibson is that allowing open advertising by non-profit agencies for the first time would drive up the “supply” – to use Cotton’s term – of surrogate mothers.

“We are very worried that we would see an explosion of the numbers of women coming forward who will get sucked up into this, who might not have spent a long time giving it a lot of thought, who might not be building up relationships with the commissioning parents, and who might be doing this thinking, ‘It’s a beautiful, miraculous thing to do, and I can get a significant amount of money while I do it’,” Gibson says.

Along with Stop Surrogacy Now UK, Surrogacy Concern has collected testimonies from British surrogate mothers who have experienced regret.

In one of many stories, an altruistic gestational surrogate named Rachel, who gave birth to twins for some friends, says she was “well-meaning and ill-informed”. She was unaware of the hormone supplements necessary until after she had agreed to the pregnancy, by which time she felt she could not deny her friends a baby. After suffering second-degree tears and having one of the twins admitted to the neonatal intensive care unit, she was treated for post-traumatic stress disorder.

UK fertility lawyers NGA Law and surrogacy agency Brilliant Beginnings are quoted by the Law Commission as saying the ban on advertising reflects “the desire to prevent surrogacy from occurring, which is inconsistent with modern attitudes on surrogacy”.

Anti-surrogacy campaigners are sometimes accused of promoting outdated attitudes, and specifically of being homophobic. These critics point to how Italian prime minister, Giorgia Meloni, who is anti-LGBT, recently criminalised citizens engaging in surrogacy abroad.

Gibson believes there is a 50-50 split between domestic surrogacy and international surrogacy where the baby is then brought home to the UK. The Law Commission hopes its reforms can encourage domestic surrogacy by making it more appealing, but it also proposes to make it easier for parents using surrogacy abroad to start the UK paperwork before the birth.

“Commercial surrogacy practices are banned in this country. People are circumventing our ban to go abroad and buy babies in large number. That is a child protection and a safeguarding failure, which we have raised with government,” says Gibson.

“We are an outlier in allowing any form of surrogacy at all. In allowing people to go abroad and pursue commercial surrogacy, we’re basically giving a green light to wealthy people buying babies off mothers, often in developing countries or low-income women in US states.”

Despite the similarity of Meloni’s position on international surrogacy and her own, the Surrogacy Concern founder is adamant that homophobia does not explain her opposition to surrogacy.

“I’ve been a campaigner on the left all my life. We have no problem with non-traditional families, and we support gay parenting. What we are against, for everyone, regardless of sex or sexuality, is surrogacy,” she says.

Pointing out that the “vast majority of people who pursue surrogacy are heterosexual couples”, Gibson adds: “It’s important to understand that there is no unified view on this amongst any community, and we’re supported by a lot of gay men and a lot of infertile women.”

Some see parallels between the surrogacy debate and the clash over trans rights.

Asked why the last government did not pursue the surrogacy rule changes, Jones of SurrogacyUK replies: “I think it is unfortunately that we’ve been caught up in this anti-trans rhetoric. We are in that sort of culture war. Maybe people are worried to put their heads above the parapet and speak up for surrogacy.” She “absolutely” believes that some anti-surrogacy campaigners are homophobic.

On a purely practical level, Surrogacy Concern says the HFEA has little appetite for becoming the surrogacy regulator as the Law Commission has recommended. Would the fertility regulator agree with that observation?

“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,” says HFEA director of strategy and corporate affairs Clare Ettinghausen.

“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, not in overseeing non-profit organisations.

“If you think about the Charity Commission and what they do, it’s much more similar to that,” Ettinghausen says. “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.”

If the government were to implement the recommendations, Ettinghausen says the HFEA would need extra resources to set up a new pillar of regulation – from expanding the workforce to include policy and legal development professionals, to building inspector training resources and developing 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,” she says. “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.”

Hopkins of the Law Commission tells The House: “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 adds that the regulator “was always going to be the HFEA”.

The law commissioner says “we don’t have any indication yet” as to what view the new Labour government might take. But as surrogacy becomes more common, there is significant demand for reform of UK law.

The question remains, are these the right reforms? There appear to be practical concerns around the Commission’s recommendation for a regulator. As for the ethical considerations, it may be that neither the pro-surrogacy nor the anti-surrogacy side gets their way, with ministers deciding the area is simply too controversial to go near.

If Wes Streeting does back the reforms, it is easy to see how a clash with some feminists – similar to the one Labour found itself struggling with on gender – would ensue. 

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