The Law Commission report on surrogacy law and draft bill for parliament is published today

[FannyCann]

As per the title the Law Commission released their report on surrogacy law at midnight.

www.lawcom.gov.uk/project/surrogacy/

The link includes links to a 25 page summary, a short Core report a full length length report and the draft bill plus various explanations.

I woke up at 1 am and made some hot chocolate and read the summary and delved into the other reports briefly, back to bed at 3 and now knackered!

Got to rush off to work so I'll throw in some comments later but as expected their key proposal is legal parenthood at birth.

As far as I can work out the mechanics of this are worse than expected in that although the woman has six weeks after the birth to object (four in Scotland) the commissioning parents (I refuse to use intended parents but that is their term) will still be THE LEGAL PARENTS and the woman will have to apply for a PARENTAL ORDER. Assuming the CPs will have taken the baby home, the combination of the principle of possession being 9/10ths of the law plus them being the legal parents means that to my bleary eye the surrogate mother will have no chance of keeping her baby or getting it back or achieving legal parenthood.

Look forward to comments - I've got to go now.

I have heard from my friend At Nordic Model Now who emailed this comment:

"The "equality" impact assessment is utter bollox. But includes this interesting bit:

"Around half of the consultation responses received were based either entirely or in part on
a template produced by a feminist campaigning organisation, Nordic Model Now!. Nordic
Model Now! is an organisation that campaigns for a particular model for dealing with sex
work in which those who buy sex rather than sex workers are criminalised (called the
Nordic model). Nordic Model Now! opposes all forms of surrogacy on the basis that it is
incompatible with the rights and dignity of women. It sees surrogacy as a form of abuse
and exploitation of women. Essentially, their response, and their template response,
sought something outside the terms of reference of the project: the absolute prohibition of
surrogacy.

Nevertheless, these responses have been valuable in putting forward measures to protect
and safeguard surrogates and children in any reformed law, while acknowledging and
advocating for their preferred position of prohibition.""

To all those in here who replied using the NMN template - thank you so much.
I think it's absolutely fantastic that around HALF of all responses we're via NMN.
This In itself demonstrates that a significant number of people object (I assume there would have been other responders who objected but write their own responses as I did) and that the consultation process as so complex that people had to use a template to respond.

So proud of the wonderful women at NMN who did a great piece of work on it.

This review was carried out in consultation with surrogates. Not having legal responsibility from birth is what they most want. It's also best for the child because children are having treatment delayed at the moment while doctors seek consent from surrogates who, having successfully completed their journey have busy lives and no idea about the child's health on that day or wish to be consulted about whether the baby has blood taken etc.

None of that made a whole lot of sense.

It makes sense, despite the formatting issues.

I’m not convinced by the idea that we need to relax surrogacy laws in the UK to prevent Brits going abroad for surrogacy.

Why not tighten up the laws regarding bringing babies into the UK from overseas? No one is allowed to go abroad for a few weeks, adopt a child overseas and bring them back to the UK (unless they’re already approved as adopters in the UK), so why is surrogacy so different?

Book marking to come back to. As an adoptee my overriding feelings are that children are not commodities

I've only read the short report. Can't see much concern for the surrogate even in the new pathway.

A simple word count for the word 'woman' and 'surrogate' would suggest the same.

Woman mentioned 7 times
IP mentioned 97 times
Child 112 times
Surrogate mentioned 114 times

This quick blog gets to the crux of the matter - most responses want surrogacy banned but as this wasn't their starting position the law commission cant really take that into account.

Maybe designing a public consultation with a foregone conclusion means it excludes people, rather than includes them and means the temperature you take isn't the public one.

nordicmodelnow.org/2023/03/29/most-respondents-to-the-law-commissions-surrogacy-consultation-want-a-total-ban-on-surrogacy-in-the-uk/

@OhHolyJesus those figures say it all really

I found it completely unnecessary to have the senders preferred pro nouns in their email address. I’ve never known a man with the name Diana.

There’s a lot of assumption here that surrogates want to keep the baby. In how many cases is this true?

Anyway this seems to be in favour of the surrogate because it looks like she has 6 weeks to make a claim to the baby. Do the parents also get the opportunity to dump the baby on an unwilling surrogate up to 6 weeks?

I once read about 5 legal disputes from a surrogacy agency website (owned by a surrogacy law) but this page has been deleted. I assume there are more than 5 but those were the bigger cases where the baby remained with the mother. Other cases wouldn't have even got to legal action. The mother would have wanted to back out during pregnancy but couldn't.

See an example in this case where the mother had the parental order overturned in an unprecedented legal judgement.

twitter.com/wombsnotforrent/status/1624769516151472131?s=12&t=3vhG_KDq77qvuwlnTiE6jg

The 6 week window to make a claim is a red herring. Consider how a judge might view the situation...the mother agreed, she signed something making a statement to that effect, she has no rights and is not named on the birth certificate (how does she prove her relationship with the child?), she may have no genetic relationship with the child but a commissioning parent/s does, the child has been in the care and custody of the commissioning parent/s since birth and the child cannot speak on order to voice their wishes. Social workers will see the child is cared for and loved. The agency (if there is one) and other surrogate mothers, family and friends will be saying she has done the right thing. Her husband or partner may not want to have the baby with them at home as another mouth to feed.

Then consider her hormone levels and mental and emotional state. Is she strong and ready to take on a court case? Against people who have either become good friends (good enough to give them her child) or have been long term fitness or even a family member? How might that affect her family?

Maybe a surrogate mother wanting to keep the baby might fight her way through all that (whilst recovering from a c section or birth injury) and come around to deciding to go ahead and secure legal representation with a significant sum for a deposit in 6 weeks (4 in Scotland), or maybe that time will pass and she will live with the regret and loss forever.

It is vanishingly rare.

Surrogates want to not have parental responsibility. If you talk to them. Hence the report.

@OhHolyJesus does it cover if the intendeds parents /commissioners change their minds?

There are a few but I have only seen one case of U.K. based commissioning parents reject the child, but only because it was picked up by a feminist watching what was happening in Ukraine.

twitter.com/Omnia_Somnia/status/1517974118527901696?s=20&t=0OnuGtRrXjPjbRYoSCSOjQ

The baby was unwanted by both commissioning parents but as I presume it was the father who had the genetic connection he was responsible for the child and has the connection to the UK. The parents split before his birth and the father didn't want the little boy due to a medical condition.

The surrogate mother wasn't mentioned, only that she was 'fine' but I imagine was quite torn, given that she gave birth to him, he had medical needs, she probably had other children and probably also feared for her life and that if her families given that she gave birth in a war zone.

Other situations like this are usually from the US or other Ukraine surrogacies and usually the mother takes care of the child, at least these are the ones we hear and as they end well. Where these babies end up if the mother doesn't take on parental responsibility, I don't know ...but this one ended with an attempt for a private adoption and I understand that private adoption does happen on these countries.

@OhHolyJesus you'd think they'd make the effort to include it in their "pathway" though... stranger things have happened!

Britain has already had its own "Baby Gammy" case.
This involved twins, where one of the twins has a genetic disorder. The commissioning parents kept the healthy twin but rejected the one with the genetic disorder describing her as a "dribbling cabbage".
The surrogate mother was so outraged and has kept the little girl.

Because she was the legal mother she was able to do this without difficulty.

As far as one can tell under the new proposals the commissioning parents will be the legal parents and in such a situation would then simply reject the baby they didn't want and it would be put up for adoption. The surrogate mother, not being the legal parent, would then have to apply for a parental order to keep her own child. (Remember about 30% of surrogacy in the U.K. is so called "traditional" ie the surrogate mother is also the genetic mother).

Babies put up for adoption in this way are usually fostered before a longer term placement or possible adoption is arranged. Presumably if the surrogate mother in this situation wanted to take immediate care of her baby she would have to be approved as a foster carer? Or would a hospital just had over a baby to someone who wasn't the legal mother and let her get on with the legalities? This would be a problem as such a child clearly needs someone with legal responsibility to make medical decisions.

What a mess. It's only a matter of time before it happens again.

www.dailymail.co.uk/news/article-2734374/Surrogate-mother-twins-gave-birth-disabled-girl-told-woman-intended-child-didnt-want-dribbling-cabbage.html

Aye, this is how the Scottish Government works. 'Consultations' are usually a tickbox exercise so they can pretend they engaged with the public. During the GRR 'consultations' many of the responses were from Scotgov funded organisations, which unsurprisingly chose to back the govt position. And although the large majority of public responses disagreed with the proposals, these were disregarded.