Elysia: [00:00:00] Welcome to the Oxford Undergraduate Law Podcast, where we discuss the law and its implications on our relationships, our markets and our futures. I'm Elysia Boon, one of the podcast editors. We platform academics, practitioners and experts from different backgrounds on this podcast. This series was made possible by the generous support of Crown Office Chambers, one of the leading London sets of chambers specialising in civil and commercial work.

Surrogacy is the practice of a person, the surrogate, carrying a child that may or may not be genetically related to them, and giving birth to the child for another family, the intended parents. With the rise of modern family structures, and the demands that a modern life places upon those who wish to have children, surrogacy has become a viable option for people unable to carry children, or [00:01:00] wish to have children at a later time in life. However, It is unclear if the laws and regulations surrounding surrogacy have responded adequately to its rise. 

Today, we are extremely honoured to speak to Professor Amel Alghrani, a visiting Professor of Law at the University of Oxford and a full time Professor of Law at the School of Law and Social Justice at the University of Liverpool. Professor Algrani is an expert, particularly in health law, where she focuses on the regulation of reproduction and assisted reproduction, including surrogacy, and in education law, where she focuses on healthcare and educational rights of children and young people with special educational needs and disabilities. Her work has been published in many prolific journals, such as the Journal of Law and the Biosciences, Child and Family Law Quarterly, and more, and has been cited by the UK Supreme Court. 

Hello Professor Alghrani, it's so wonderful to have you here today.[00:02:00] 

Amel: Thanks. It's an absolute pleasure do this, so thanks for asking me.

Elysia: Yeah, it's no worries at all. So, just to start us off, would you like to tell us a bit about the history of the laws relating to surrogacy, such as the Surrogacy Arrangements Act in 1985, and the Human Fertilization and Embryology Act of 1990 and subsequently 2008?

Amel: Yeah. So the Surrogacy Act 1985 was born amidst lots of controversy, which centers around the Kim Cotton case. She was the first woman in the UK to carry a baby for intended parents who are from America. She did it for 6500 pounds. And she said her motivations were twofold: partly to help renovate her family home with her husband and two kids because she was a stay at home mum, but also because she said she couldn't imagine not being a mother or being able to give birth and she wanted to help someone [00:03:00] else.

She actually said she felt compelled to and that anyone who's lucky enough be able to give birth to a child should share their fertility. Now when the press heard about this, it was sensationalized and some of the headlines were "born be sold", "no better than prostitution", "sold for curtains and carpets", and the child was made a ward of the court whilst the court decided who should take care of the child: whether it should be Kim Cotton and her husband or the intended parents.

This happened around the same time there was much concern around IVF and the birth of the world's first what was called test tube baby, baby via IVF, Louise Brown, who was born in Oldham in 1978. And the Warnock Committee had been commissioned to consider how to regulate IVF and also surrogacy. And it was amidst that controversy that the Surrogacy Act which was very restrictive was [00:04:00] born and the Surrogacy Act 1985 criminalized commercial surrogacy - it was very clear in doing that - and banned agencies from profiting from facilitating surrogacy arrangements. It prohibited the advertising of surrogacy services and it declared that surrogacy arrangements would be completely unenforceable. And that act really reflected the skepticism about practice, its morality, and its social acceptability at the time. When the Human Fertilization and Embryology Act came into place, the Human Fertilization and Embryology Act 1990, it encompassed a broader regulatory framework and it maintained the presumption that the legal mother is the mother who gestates and gives birth. Post the HFE Act 1990, in 1998 there was the Brazier Report, Margot Brazier had wrote a report which really criticized the [00:05:00] Surrogacy 1985 as ineffective, outdated, and she noted that its prohibitions didn't prevent surrogacy at all. It merely drove the practice underground which of course exacerbates the problems there for exploitation. So she recommended replacing the law with a new Surrogacy Act.

She was opposed to commercial surrogacy, which I'm not. But she proposed allowing payments of specific pregnancy related expenses. Despite her report, no action was taken. And then we see in the Human Fertilisation and Embryology Act in 2008, the provisions on parental orders were updated. And then in 2010, finally, someone remembers the child's welfare, the child born from the surrogacy arrangement is very important. And we have these 2010 regs, which says child's welfare is the paramount concern.

So what we essentially have [00:06:00] is a rather incoherent, outdated framework to govern this practice, which has attracted lots of criticisms. 

Elysia: It seems as though the law has changed quite a bit since the Surrogacy Arrangements Act in 1985. Do you think there's any reasons why this might be the case, like public and judicial opinions changing, even though it is still quite incoherent as you've pointed out?

Amel: Yeah, I think there's probably three reasons. The first is there have been change and evolving societal attitudes towards the practice. There's growing recognition of infertility as a widespread issue which increases the demand for surrogacy to help people overcome their infertility. There's a wider acceptance of diverse family forms, broader acceptance of surrogacy as a way of founding a family.

If you think about all the celebrities who've had a child via surrogacy, you know, Kim Kardashian, Khloe Kardashian, Elton John, John Legend and his wife, Paris Hilton, you [00:07:00] know, I could go on and on, Sarah Jessica Parker - it's, it's now becoming a much more accepted way of founding a family. 

And also globalization and technology. Of course, these facilitate people being able to make international surrogacy arrangements and what we call "do it yourself" arrangements outside the legal process. I think in terms of judicial and legislative realities, I think child welfare is now more of a paramount concern, and courts increasingly prioritise the welfare of the child. So you see parental orders being made, even though expenses which extend beyond what's reasonable are being paid, even though the application's made out of time, etc.

Which is right to prioritise child welfare, of course. And then there's been this pressure, I think, for reform from academics, from public, from-

Elysia: From you.

Amel: From many of us, you know, as, you know, we need laws to work in practice so they don't become obsolete. I [00:08:00] can tell you about a case which highlights some of the problems, a case called Re T T, where this couple who were intended parents went on Facebook to look for a surrogate, went on a Facebook social chat room and the first person they met, they invited this lady to their home and they'd hoped she'd be their surrogate.
In the judgment it talks about how this lady had "Porn Princess" tattooed on her breast. And it transpired she already had five children in care. And then they quickly realized that if she carried their child, when it's born, it's most likely to be taken into care. So then they found another woman, who was a single mother from London, who they decided be their surrogate.
She successfully conceived, but as she got to know the couple, the woman confided in her that sometimes her partner was, abusive towards her. He tried to strangle her with a car seat belt. So the surrogate then changed her mind. She thought, I'm not giving this couple this baby. And she told them this via [00:09:00] a text message.

I've changed my mind, you know and then blocked them. And then when she gave birth, the intended parents took the matter to court. You know, they want a custody of the baby and the court decided it was in the child's best interest to remain with the surrogate. In that judgment, the judge said the way both parties had gone about this communicating decisions via a text message and on Facebook and social media platforms simply conveyed how they didn't grasp, you know, the fact that they were creating a human being, a human life and what was involved. And that's an example of how people can evade the law, using phones, using the internet, and if the law is to be effective, we need to make sure protects all the parties.

So I think, I think public and judicial opinions have also changed as well. There was a lot of scepticism in the Kim Cotton case. If you read the judgement, some of the comments from the judiciary there, they described [00:10:00] surrogacy as inhumane, offensive, artificial and if you compare that to the comments of Judge Baker in Re T where he says you know surrogacy is now an acceptable path and method of founding in a family in 2012 so there's been massive movement there as well.

Elysia: Thank you so much. I think in your response, you really highlight that there's actually, in fact, lots of changes and diversification in the kinds of prevalent surrogacy arrangements, so people can actually go onto Facebook or communicate decisions via text message about surrogacy arrangements, and yet you identify in your paper, "The regulation of surrogacy in the United Kingdom: the case for reform", that data regarding surrogacy is largely absent or poorly collated.

What problems do you think this might cause?

Amel: I think there's probably five main problems we have with a lack of data. 
Okay, so the first is we don't have adequate insight into how prevalent the practice is. Data on [00:11:00] surrogacy including how many parental orders have been issued is sparse and incomplete because obviously not everyone who has had a child via surrogacy applies for a parental order. 

Secondly, we know there's gaps in demographic understanding so we don't have vital information about the characteristics of surrogates or intended parents because it's not systematically collated or analysed, especially if people are um, founding a family via surrogacy outside the law or they're going abroad. And again, this limits our ability then to address specific community needs and ensure essentially that there's equitable access to this method of founding a family. 

There's challenges with international surrogacy which a lack of data also creates because we don't know how many people are going abroad to countries which have more appealing regulatory frameworks. So, for instance, some states in America, if you're an intended parent, you'd want to go somewhere, I imagine, where it's [00:12:00] enforceable, where you know the surrogate can't renege on the agreement and decide she's going to keep the baby for herself or terminate, et cetera. 

Fourthly, this does impact on policy and regulation because the absence of that reliable data impairs the ability to do and make evidence based policy and laws. It limits our ability to assess where the existing laws are effectively protecting all the parties involved, but especially the children. And that poor monitoring contrasts starkly with the rigorous data that we collect in other areas like if you think about IVF provision. 

And then lastly and fifthly the problem with this lack of data is it increases the risk of informal and unregulated surrogacy practices. We don't know how prevalent they are and without oversight those children may be born into legal limbo. We know that [00:13:00] intended parents who've gone abroad have struggled to get those children back in the country and they've been marooned stateless with unclear parentage or citizenship. So I think the absence of well maintained and accessible data undermines effectiveness current surrogacy regulations and highlights the urgent need for reform to ensure better protection, better transparency and understanding of exactly what's happening with surrogacy practices in the UK.

Elysia: Yeah, I think that makes total sense, I think you also identify in your paper that all these problems, especially problems of the fact that there's like a misalignment with legal regulations, with other forms of assisted reproductive technologies and surrogacy, these things are exacerbated by the current law. Where in order to become the legal parent of child and extinguish the legal rights that the surrogate parent has in the child, you have to make a parental order, right? But, you identify that there are several issues with this in your paper, would you mind [00:14:00] elaborating on some of these issues?

Amel: Yeah, so I think they're unduly prescriptive and restrictive, right? So if you want to apply for a parental order you have to be in an enduring relationship, so it discriminates against single parents and we saw this challenged with the Re Z case. It's strange that the government changed the HFEA Act 2008 to allow single women and same sex couples to have IVF. So if you're a single woman, you can have access to IVF. But you can't get a parental order for a charge you've created via surrogacy that's already in your care so it's discriminatory against single parents and they have now addressed that post challenge of Re Z. There's still these restrictions on payment - only reasonable expenses can be paid if you want to get a parental order - but the reality is if someone's gone abroad, entered [00:15:00] into a commercial surrogacy arrangement and paid beyond reasonable expenses, the courts are still authorizing parental orders because it's in the child's best interest as per the 2010 regs and the child is already in the intended parent's care. There's inflexible time limits required so applications for a parental order have to be made within six months of birth. Again, this has been stretched in reality where applications have been made out of time and rightly so, because it's in the child's best interests to be living with parents who have legal parentage and response, and parental responsibility for them.
So some of the other requirements, the domicile requirement is problematic. Section 54B mandates that at least one of the parties has be domiciled in the UK. Creates barriers for international surrogacy arrangements and families who have transient lifestyles. And again, consent of the surrogate.

So. The surrogate has to give informed consent to [00:16:00] the parental order. But it's not valid until six weeks after the child's birth. Some surrogates have said they don't want to have legal responsibility for six weeks after the child's birth when they've already handed over the child. I don't think the parental order requirements reflect the reality of what happens in practice. I don't think they align with human rights obligations not be discriminatory and I don't think they place the best interests of the child first and they are often stretched to comply with the 2010 regs which say the welfare of the child comes first, even if the application is made out of time, even if expenses have been paid that are way beyond reasonable. So yeah, so I've been quite vocal and quite critical on um parental orders haven't I in that paper? 

Elysia: Yeah you are, and I think for good reasons you've named so many issues with [00:17:00] requiring parental orders, and it seems as though, even though there are so many issues surrounding the current law, and even the judiciary recognizes this when they choose to bend the law a little bit in order to get the welfare of the child prioritized over all the things, are there any possible reasons why these issues continue to persist despite, it seems as though, everyone knows that there is an issue with the law? 

Amel: it's a very controversial topic and I don't think there's much political appetite to reopen and revisit this. There were discussions that they planned to update the Human Fertilization and Embryology Act. Now we have a new government. It's gone very quiet on if that's still going to happen or when.
So we do await that. 

We've also heard the Law Commission's proposals to update surrogacy. So I think there's widespread acknowledgement that the law... the law is in need of reform. So, so, so that's promising. Don't particularly think it's a [00:18:00] vote winner. It still causes lots of controversy. There's still lots of concern around commodification of children, exploitation.

The law commission were, I think, rather conservative and not opening up the issue of whether the surrogates should be paid for their services. And I do think until we address that, the problems are going to continue. You know, my, the late professor Michael Freeman once said something which I find still to be true. He said, surrogacy will continue and it will probably grow as infertility increases, it will go underground and the fees will become larger. 

We can't stop women exercising their autonomy, nor can we persuade them that being paid aggravates their exploitation when common sense tells them the reverse. People will continue to go where there is commercial surrogacy. We have a lack of surrogates in the UK. And the reality is people, [00:19:00] surrogates may be motivated to carry a baby for another woman. Both to be altruistic and to receive money, as Kim Cotton did. The two aren't mutually exclusive, they're mutually intertwined. A woman can be motivated by both.

And because we do live in this global world, if someone is infertile and desperate to found a family, and their only option is to do it via surrogacy, they will continue to go to countries if they can afford to do so, where it is permissible and commercial surrogacy will still happen. You know, that's the reality I think we need to face and that we, we live in a global world now.
So, so I think there's a reluctance to address it for those reasons. But I think until we reconsider our stance on commercial surrogacy, it's going to continue generate problems.

Elysia: So would you say that this globalisation, this globalisation of surrogacy, being able to get a surrogate from international means, for example, might make reform more necessary than [00:20:00] before, perhaps in 1985 when international surrogacy was not so common?

Amel: Yeah, absolutely. The advent of the World Wide Web and globalization has definitely presented more problems and also complex legal battles around parentage, nationality, etc. So yeah.

Elysia: Thank you so much, Professor Alghrani, for your insightful commentary regarding the current law of surrogacy. Before we move on to the next segment regarding possible reforms of the law on surrogacy, we would like to express our gratitude for the generous support of Crown Office Chambers.

Crown Office Chambers is a leading set consisting of over a hundred commercial and common law barristers, arbitrators, and mediators. They have just released a short film introducing their pupillages. The film, as well as other [00:21:00] information about pupillages, can be found on their website at www.crownofficechambers. com/careers/pupillage. Thank you, Crown Office Chambers.

We return to the next segment of our episode today, discussing possible reforms of the law on surrogacy. Professor Alghrani, in your paper, you identify two possible reforms to mitigate the issues present in the current law regarding surrogacy. Firstly, in stating a preconception regulatory framework, and secondly, moving away from the two parent framework.

Would you like to elaborate on the preconception regulatory framework first?

Amel: Yeah, sure. So I guess the preconception regulatory framework was suggested as opposed to what we currently have which is more post hoc. So after the child's [00:22:00] born, then you can apply for parental order. So the idea with the preconception regulatory framework was that it involves setting out very clear rules and guidelines before the pregnancy begins, before the surrogate conceives and gestates birth.

And then it ensures that both the intended parties and the surrogates are very clear and aware of their legal rights and responsibilities. And hopefully that would help mitigate disputes and clarify legal issues from the outset, which then protects all the parties involved. And it's similar to what we do with IVF or other fertility treatments.

So when an individual or a couple want IVF, the law mandates clinicians to consider under Section 13. 5 of the HFE Act the welfare of the child that's going to be born. It's almost a screening process. And the codes of practice provides clinicians with guidelines on what they should look out for. So it'll be bringing it in [00:23:00] line with what we do in other areas of assisted reproduction.

Elysia: I think in your paper, you identified, I identified two parts of this preconception regulatory framework that I personally found very interesting. So the first one would be the removal of the requirement of the parental order, and the second one is a little bit more controversial, which would be the permission of moderate payment

Amel: Ah, yeah.

Elysia: Yeah, in relation of the first one. So in 2023, the Law Commission of England and Wales published its joint report with the Scottish Law Commission recommending reforms to the current law on surrogacy. I think one of the key changes that they recommended was removing the requirement of making a parental order unless the surrogate changes their mind during this little six week period that they currently have.
Do you agree with such a recommendation?

Amel: Yeah, I agree with this reform. I think it would streamline the legal process and it would remove unnecessary delays in securing legal parentage for the intended parents. And the process would be more straightforward, [00:24:00] particularly if all the parties are in agreement. And it also minimizes bureaucracy, and it still safeguards the rights of the surrogate.
So that I'm in favor of.

Elysia: Other reforms that you were talking about was not in the latest Law Commission report, which is the issue of moderate payment. I think in your paper you also identify that this deviates a lot from other reports and recommendations, and many believe that permitting payment may create inequitable situations where women in financial need turn to surrogacy arrangements to put food on the table, or cite other ethical concerns like the commodification of children.
Why is permitting moderate payment a good idea in your view?

Amel: Well, firstly, the reality is it happens anyway, right? It happens anyway just outside the law. So we know people are doing it on the web, like in the Re T case, or they're going abroad and going to using commercial surrogates. So we almost just send the problem somewhere else, right? At the [00:25:00] moment we allow reimbursement of expenses. But it doesn't really address the fact that surrogates also deserve fair compensation, right? They're offering service, they're taking on very significant risks, health risks, so significant risks both physically and emotionally and fair compensation would acknowledge their contribution. 

And I think allowing moderate payments ensures that surrogates aren't financially exploited and can also prevent situations where women feel coerced into surrogacy because of financial hardship. If we allow a change to a moderate fee, it can be regulated to ensure equity and fairness. And it also respects those women's autonomy, right? That they can use their body and be paid a service. I mean, I think very controversially I said at one point to someone I was debating this with, you know, I can use any other part of my body and get paid for it. So I can [00:26:00] use my brain. If I was a model, I could use how I looked. If I was an athlete, you know, I could use my, my body's abilities et cetera, you know, why can't I get paid for using my uterus, you know? And the people will say, well, there are concerns around exploitation. And it's the more, more vulnerable women who will do that.

But again, you could argue that with other jobs. So I do think women have a right to be paid for their service. It's an important contribution. I think this sense that women should do this altruistically ties into this notion that it's somehow, you know, part of our job as women to give birth and we should want to do it voluntarily and altruistically.
It's bloody hard work carrying a baby and giving birth and I have first hand experience of that. And if someone is doing it altruistically, they also deserve to be compensated for that. I think that's fair. Not [00:27:00] everyone agrees with me. I have lovely academic friends who will argue quite vociferously with me on this point.

But Danielle and I in our paper did elaborate in a lot more detail on why we believe surrogates should be paid, so I'll just direct any of the listeners to that.

Elysia: I can see why this would work. I think importantly, I think framing surrogacy as a service that people can do that is not particularly different from other kinds of services people can do with their bodies actually might serve to reduce the stigma, reduce misconceptions that people have about surrogacy as like a very special, a very sacred thing, which we all know might be tied to certain misogynistic views about women giving birth.

I think secondly, their point about putting surrogacy above the law instead of beneath the law actually results in better protections for women who are getting paid regardless. I think these are really good points.

Amel: And those [00:28:00] children who are born from those arrangements. Yeah, so I completely agree.

Elysia: Yeah. Yeah, that's great. Moving on to the second reform that you recommended on widening access to parenthood and moving away from the two parent framework. So what exactly does that look like?

Amel: I think it was more just acknowledging that there are different forms of families and what shape they take and people can have different ties to people. It goes beyond gestational and genetic links, right? Parenthood isn't just defined by those things but rather by emotional ties and caregiving ties.

So in some, some situations where intended parents have had the child via surrogacy, they have chosen to have that surrogate as part of their family unit, where all three of them have a relationship with the child, with both the genetic and intended parents and the lady who's gestated them. So I think, you [00:29:00] know, families come in all shapes and sizes.

And I think this heteronormative model of mother and father is quite outdated and doesn't allow for more diverse family forms. I think we need to, to move away from that really. By extending the framework to include non traditional family structures, I think the law then better reflects the diversity of relationships in society and it also provides fairer legal recognition of all forms of parenthood.

Elysia: It's both a principal recognition that lots of families are very different like, not traditional family structures anymore, and also the ability to access legal recourse or some form of legal protections because we recognize these different relations.

Amel: Yeah, absolutely.

Elysia: That sounds great. Given that reform is necessary, what do you think are some barriers that will be faced in implementing such reforms, if you think they'll be implemented at all?

Amel: The first [00:30:00] one's probably political resistance. This isn't a vote winner. So. We've got a new government. We'll see if there's much appetite to update the Human Fertilization and Embryology Act. So I think political resistance is going to be ongoing, ethical concerns around the practice still and concerns it commodifies children and could potentially exploit women. 

And I think how we overcome those obstacles is public education to inform people about surrogacy, about the practice of surrogacy, about the research which has been done on surrogacy, that the children who are born via surrogacy don't fare any less well off in terms of welfare. You know, we have a data which which confirms that So so that's where I think the barriers are.

And I think this I guess increase in the number of celebrities who are founding a family via surrogacy and it being in the public eye more and deemed to be [00:31:00] more socially acceptable is also helping mitigate some of those some of those barriers. But I think political resistance to reforming the law is probably the main one and ongoing ethical concerns.

Elysia: Would you say that practices that we already use for other forms of assisted reproduction, so for IVF obviously there are consent concerns, like you have to inform the parents, for example, what they're going to go through. Do you think these kinds of measures can be transplanted into the surrogacy context in order to try and ease these barriers somewhat?

Amel: I think some of the methods we use. Brilliant Beginnings is founded by an excellent law firm, legally informed, but COTS wasn't. So, there was no reassurance that parents, would be intended parents, were being informed about the law accurately, the fact that it's not enforceable for [00:32:00] instance. So we want people who are founding a family in these ways to be informed, to have all the available information on how it could happen, how it could work, what could go wrong, what legal protection there is or there isn't. So I think The way we regulate IVF is a lot better than the regulation of surrogacy. You know, if you're an intended parent, you're looking at, even just trying to find out what the law says, you're going to look at the Surrogacy Arrangements Act. You're then going to check the HFE Act 2008, then the regs.

They're not very clear. So, so I think, yeah, I think the way we regulate other fertility treatments such as IVF is a bit better. Again, we have this pre screening process, which is still controversial because the reality is 99 percent of children are born via sexual reproduction, right? But for the 1 percent who are born via assisted fertility treatment, those parents are [00:33:00] regulated and there's an ethics committee which looks at, you know, essentially where they're fit to be a parent and it's under this guise of section 13. 5, the welfare of the child. And you know, there's lots of debate on how do you decide whether someone's fit to be a parent? What makes someone a good parent? Is it someone who's financially secure? Is it someone who's educated? Is it someone who's got a career? Is it someone who wants to be a stay at home parent and give the child all their time?
You know, there's no consensus on this. I would probably say what makes someone a good parent is their ability to love and care for their child. You can't really measure that so there are problems with screen ing parents who require fertility treatment still even with IVF so how that how we screen whether someone's fit to be a parent by a child of surrogacy encounters the same problems but I think it could be a lot better than the current system.

Elysia: Certain jurisdictions have actually implemented some of the [00:34:00] reforms that you're talking about in your paper. So, in India and some US states, as you've pointed out, for example, they allow forms of commercial surrogacy, where you can get paid for being a surrogate. And in Ukraine, for example, a parental order is not required for the intended parents to gain legal rights over their child.

Do you think that these have been implemented successfully? And are there any lessons the UK might be able to learn from these jurisdictions?

Amel: They do seem to operate successfully. And in fact, we have lots of people that go there for their surrogacy arrangements, and I think what we can learn is that you can allow commercial surrogacy, which is ethically regulated. And those countries show us that we can do that, right? We're at the current stance where we criminalize commercial surrogacy and advertising it, and surrogacy arrangements being unenforceable. There are other ways which are practiced elsewhere which work rather effectively. [00:35:00] so yeah, I do think we can learn lessons from other jurisdictions.

Elysia: Okay, that's all the questions that we have for today. Professor Alghrani, thank you so much for taking time out of your day to speak with us and to let everyone know a little bit more about the law surrounding surrogacy. Would you like to say a few final words?

Amel: It's been an absolute pleasure having this chat with you and thank you for having me on.

Elysia: Thank you very much to Professor Alghrani once again for coming to the Oxford University Undergraduate Law Podcast and to Crown Office Chambers for making this series possible. Lastly, thank you to our listeners for supporting the podcast.