Last month, the government issued thoughtful guidance on best practices for citizens considering entering into a surrogacy arrangement. Our government? No, no, sorry for any confusion. I am talking about the United Kingdom. The United States continues to maintain a patchwork of (mostly positive) surrogacy laws, or in many cases, no law at all. But the UK’s government, and more specifically, the Department of Health and Social Care, recently issued official guidance for intended parents and surrogates entering into surrogacy arrangements in England and Wales.
Tell Your Kids.
The guidance outlines provisions of existing law. These include things like (1) how to secure the intended parents’ rights after the birth of the child or (2) that UK intended parents currently need to be married or living together as a couple (although hopefully not for long) to apply for a post-birth parentage order. But the guidance doesn’t just stop with existing laws. It goes further, noting that “research suggests that openness, confidence and transparency about a child’s origins from an early age (pre-school) is the best way to talk to children about their identity and origins.”
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Yes! And that may even sound familiar! Because in the egg and sperm donor context, prominent figures in the assisted reproductive technology world, such as the Wendy Kramer, the founder of the Donor Sibling Registry, have been preaching in favor of this mentality for decades. Unfortunately, one prevalent norm in American culture is to obscure the origins of children who do not come into a family born the old-fashioned way, whether that be by adoption or through assisted reproductive technology.
Even today, many intended parents enter into “anonymous” sperm or egg donation arrangements. The idea is that the identity of the gamete providing-donor will always remain a secret to the intended parents, and to the ultimately conceived children. But Kramer, among others, believes that true anonymity is no longer possible. With very little work — a home DNA test and the internet — people who were born from donor material connect with their biological relatives, regardless of the original intent of their parents or donor. But the UK has short-circuited the process of finding one’s parents and is one of a handful of countries that requires by law that the identity of an egg or sperm donor be available to their donation-conceived children.
Acknowledgement and Support — Kind Of.
Perhaps even more notable than the guidance’s stance on disclosure, is the general position that the “[g]overnment supports surrogacy as part of the range of assisted conception options.” That’s huge! For a government to announce its support for these arrangements is incredibly helpful to those needing to turn to the surrogacy option, and not feel like they need to hide the arrangement. Yay, one big leap toward removing the stigma!
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Of course, UK law still contains many less-than-supportive measures. It is still a criminal offense to advertise that you are looking for a surrogate, or willing to act as a surrogate, even out of altruism. It is also a criminal offense for third parties to advertise that they facilitate surrogacy (with exceptions for certain non-profits) or to negotiate the terms of a surrogacy agreement. That law even applies to attorneys!
Compensation Still A No Go.
The UK continues to look skeptically at compensating a surrogate beyond the reimbursement of “reasonable expenses” (a family court must consider whether there have been such payments and exercise its discretion to authorize them retrospectively). So while there isn’t a “ban” per se preventing a UK surrogate from receiving compensation beyond her maternity clothes and lost wages, compensation for UK surrogates may be below the significant figures that American surrogates in most states enjoy. All payments made to or on behalf of the surrogate must be disclosed to the UK court when obtaining a post-birth parentage order.
Paid Leave!
On the other hand, as a working mom, I am drooling over the UK’s parental leave policies. Intended parents can receive up to 52 weeks off from work! The statutory minimum maternity leave is 90% of salary for six weeks, UK lawyer Natalie Gamble explained to me, and then a flat rate (approximately £200 per week) for the next six months. Some employers enhance this, for example to full or half pay, for six months or a year. I don’t know how smart that is from an economics standpoint (says the jealous American), but from a surrogate’s perspective, that alone may be much more valuable than the compensation American surrogates receive!
Despite some of the stark differences between our countries on surrogacy, I offer strong kudos to the UK for its thoughtful and vocal stance on surrogacy, and for producing an informative document to assist all its citizens walking this path in the dreams of a child.
Ellen Trachman is the Managing Attorney of Trachman Law Center, LLC, a Denver-based law firm specializing in assisted reproductive technology law, and co-host of the podcast I Want To Put A Baby In You. You can reach her at [email protected].