Surrogacy laws in the UK are unfair says MP today in Parliament

John Healey MP (the Shadow Secretary of State for Health) spoke clearly and compellingly in the House of Commons this afternoon about the need for proper maternity leave and pay for mothers through surrogacy in the UK (you can watch John Healey’s speech in full here). Introducing a Ten Minute Rule motion, he told Parliament about his constituents, surrogate mother Amy Bellamy and her cousin Jane Kassim. They came to see him at his surgery having been “stunned” to discover that Jane had no legal right to maternity leave or maternity pay to care for the twin daughters Amy had carried for her after Jane was told at 15 that she could never bear children.
Natalie Gamble Associates and Surrogacy UK, are proud to have supported today’s important landmark, the first time this issue has been properly raised in Parliament. As we know so well, for parents who have struggled to build their families through surrogacy (often after a long and difficult journey of infertility), the lack of basic rights to care for their newborn baby can feel like the final insult. It makes no sense and has never been a policy decision; just a gap in the law which has not been addressed. But it is important, as the current position leaves children born through surrogacy in the UK without the legal protection afforded to other children born to their mothers or adopted.

Problems with UK surrogacy law
As well as talking about maternity rights as the urgent first step needed, John highlighted some of the wider problems with UK surrogacy law which need addressing, including:
- the parents not being named on their child’s birth certificate,
- problems dealing with the child’s medical treatment,
- delays in the court system to reassign parenthood, and
- the absolute veto the surrogate and her husband hold, no matter what is in the child’s best interests.


The UK’s surrogacy laws were designed in 1990. After 22 years we live in a much changed world, with more children born through surrogacy and a much more sophisticated understanding of families created in unusual ways. The law on surrogacy was not reviewed properly when Parliament had a chance in 2008 and is overdue for review. John drew attention to other models of surrogacy law, including pre birth orders, which have been much more successful in dealing with surrogacy arrangements in certain US States, and which the UK should look to.

What was said in Parliament?
“Unlike other mothers, Jane is entitled – having her baby through a surrogate mother – to only 13 weeks parental leave unpaid, and then only entitled to it when she and her husband have a parental order in place. That means that for mothers like Jane, they are faced with the choice of going back to work very quickly or indeed giving up their jobs entirely. Today is a day when I hope this House will take the first step in closing this legal loophole.

“As the leading lawyer in this field says: The conditions for a parental order do not place the child’s welfare first, and ultimately children born through surrogacy do not have the same protection as other children to the time to bond with their parents in the early months of life. That is from Natalie Gamble, a leading legal expert in this field and one who has conducted more cases and seen through more parental orders than any other lawyer in the country.

“There are probably around 100 babies born through surrogacy each year, but the number is growing as society is changing and science is advancing. Surely there must be a good case for Britain, like some States in the US, to have a system of pre birth orders. But the first and most important step is to secure basic maternity rights. So that mothers like Jane who have their children born through surrogates have the same rights as any other mothers who give birth themselves or indeed who adopt children.

“It is wrong that thousands of mothers who have their own babies or who adopt have a legal right to 39 weeks maternity pay and up to 52 weeks maternity leave, while others have a right to only 13 weeks parental leave unpaid. It is wrong that such parents cannot put their names on their children’s birth certificate, they cannot make decisions about medical treatment for their children until they have a formal parental order in place. It is wrong that such a legal step can be blocked completely by the surrogate mother or her husband; and wrong that it may take months, if a magistrates court is busy, to get that order in place. Above all it is wrong that mothers like Jane are denied the same basic rights to the time they need together with their newborn babies that other mothers have.

“Amy simply wanted Jane to have the same joy as a mother as she had with her own son Archie. Together they make a very powerful case for legal change. This is their campaign and I hope this House will back them today.”

What next?
The Bill proceeded unopposed and was formally listed for a second reading, although in practice it is rare for Ten Minute Rule Bills to be given sufficient Parliamentary time to become law. However, a cross party group of MPs will now meet with the Minister for Employment to press for government-led change. We will continue to support this however we can and if you want to get involved or can help with case studies, please do contact us.

Woman’s Hour today
Natalie was also interviewed on this morning’s BBC Radio 4 Woman’s Hour, following a discussion on the lack of maternity leave rules for surrogacy which Natalie contributed to back in 2009, and updating the programme on what was happening today. You can listen to Natalie on today’s Woman’s Hour here.

Article: 17th April 2012 www.nataliegambleassociates.co.uk

International surrogacy parents talk to BBC Radio 4 about their experience

Parents Michelle and Paul (names changed) spoke to BBC Radio 4′s World at One today about their experiences of international surrogacy, and the problems with surrogacy law in the UK. Their legal case (in which we represented them successfully) was reported anonymously by the High Court last December (as Re L (a minor) 2010) and received national press coverage at the time. Michelle and Paul took the brave decision today to speak about their personal experiences, in order to highlight the difficulties they have faced.
As Michelle and Paul explained, they entered into a surrogacy arrangement in Illinois after a very long and difficult journey of failed IVF and miscarriages. They did so in accordance with the law in Illinois and underwent a thorough vetting process with a clear legal procedure designed to protect all involved. Under Illinois law, they were treated as the legal parents of their child from the outset.

However, UK law treated their surrogate and her husband as the legal parents, despite the fact that neither had any biological connection with the child. Michelle and Paul therefore needed an English High Court order to become Mum and Dad in the UK.

One of the key issues for the court here to consider was the mismatch between UK and Illinois law regarding the issue of payments to their surrogate. In Illinois, payments for a surrogate’s inconvenience and discomfort can legitimately be made, although payments for a child are not allowed. In the UK, the law refers to ‘reasonable expenses’ (with no definition of what that means) but confusingly also gives the court a specific power to ‘authorise’ other payments. Ultimately in this case Mr Justice Hedley, noting that Michelle and Paul were the ‘most careful and conscientious of parents’, agreed to authorise the payments so that they could be approved as legal parents. However, he did not accept that the inconvenience payments to their surrogate were reasonable expenses.

It’s a story with a happy outcome, but one which shows that working out what is acceptable to pay for surrogacy at home and abroad is tricky.

In Illinois there is a clear legal framework in which payments are agreed and set out in writing at the outset (following counselling, psychological assessments and legal advice for all). If everything is done correctly at the outset, then the child is a part of the intended parents’ family throughout.

There is no such certainty under UK law. Every judge can interpret what is ‘reasonable’ differently, and the issue will only be considered after the birth of the child when the payments have been long since made, by which time there will always be tremendous pressure on the court to make an order protecting the child’s welfare. As Michelle pointed out so poignantly, the value paid to the surrogate in this case was in fact no more than what has been accepted as being reasonable expenses for surrogacy in the UK, but it was not considered expenses in their case because the arrangement was an international one set up within a different legal framework.

We are left asking – where the values being paid for surrogacy are comparable, does it make any sense to treat them differently just because they are called compensation rather than expenses, and just because they are agreed in writing at the outset? Would it not be better to have a more upfront system in the UK which resolves these issues at the start, rather than after the event?