Last year, I carried a child as a surrogate for a couple I met through a surrogacy organisation. It was a wonderful experience that I am proud and honoured to have gone through, but current laws around surrogacy made it much more complicated than any of us wanted it to be.
I had a beautiful home birth, which both parents attended. The baby’s mother had the first skin-to-skin contact with her new daughter, then the family bonded together for a few hours before they introduced the baby to me. We all spent the rest of the day together and I got my first cuddle, then the baby went home to live with her parents.
From the beginning of my pregnancy through to those first hours after birth, it was always clear to me that this baby was not mine. And yet, under existing legislation, I was required to put my name down on the baby’s birth certificate as her legal mother, with all the parental responsibility that entails in the eyes of the law. To change this, her parents and I applied for a court order shortly after her birth. This can take as little as six weeks, but in practice, it’s often much longer. The baby that I carried will be seven months old when we attend our court date in mid-April.
In the meantime, if she needs any medical treatment it is my consent, rather than her mother’s, that is required, despite the fact she isn’t being parented by me and has no genetic link to me – her parents had frozen embryos years before I met them.
Despite rigorous checks being made prior to my getting pregnant, by the surrogacy organisation and the fertility clinic, the court asked me to provide more proof that I had entered into the surrogacy arrangement willingly. I was interviewed by a court official, which I found very stressful, knowing that my answers could impact on whether the couple that I carried for would become the legal parents of their own daughter.
The current law simply does not recognise the informed and intentional nature of real-world surrogacy arrangements. Now, a once-in-a-lifetime review ought to haul Britain’s outdated surrogacy laws into the 21st century – a huge relief for hundreds of parents and surrogates, like me.
The parents of a child born through surrogacy should be able to get legal parenthood from the point of birth, recommended the review, published jointly by the Law Commission of England and Wales and the Scottish Law Commission on Wednesday. A surrogate would be able to withdraw consent to this agreement at any point up to six weeks after the birth, but this is likely to be incredibly rare. In the years that I have been involved in the surrogacy community, I have never known a surrogate to even consider changing their mind. Throughout my surrogacy journey, I was completely confident that I wanted to relinquish my parental rights to the baby’s mother, so the legal steps of my surrogacy journey would have been much easier under this proposed new system.
I became a surrogate because I wanted to experience pregnancy without becoming a parent, and many of my surrogate friends opted to become surrogates because they enjoy pregnancy and don’t want any more children. Others hate being pregnant yet just enjoy helping to create a family.
In the UK, only altruistic surrogacy is allowed, where the surrogate doesn’t benefit financially from the agreement. This ensures that surrogates enter into a surrogacy agreement because they want to be a surrogate, rather than for financial gain. The Law Commission review does not propose changing this, but it does offer some clarifications.
While pregnant as a surrogate, I was reimbursed for what the current law calls “reasonable expenses”. I didn’t want to take financial advantage of the couple that I was carrying for as I had become close friends with them, but there is no legal guidance on what can be covered by these expenses. This leaves both sides in a legal grey area, unsure what they are allowed to claim or pay for.
When I found working in the garden too uncomfortable during my pregnancy I claimed for a gardener, but I didn’t know if this was “reasonable”. Although my partner was able to take on my share of the work, it felt unfair that he had to do this just because I had chosen to carry someone else’s child. The Law Commission review adds much-needed clarity by stating that paying for domestic support should be allowed because a surrogate may want to shield their family from being affected by the pregnancy.
It also proposes other acceptable examples, such as maternity clothes and medical care; as well as those payments that should be banned, such as covering a surrogate’s rent, or any compensation for “pain and inconvenience”. The review suggests allowing payment for a recuperation break too, a holiday for the surrogate to reconnect with their own family after the pregnancy – something that is already common practice in the surrogacy community.
However, the review also suggests tightening existing practices, which I fear could be too strict. Three weeks after I gave birth, I was still unable to walk and required a lot of help from my partner. My surrogacy expenses reimbursed him for his loss of earnings during this time, but the proposals mean I would only have been allowed to claim for the first two weeks of his help.
Overall, the Law Commission report on surrogacy is a positive step and will make it much simpler and safer for everyone involved. The changes bring Britain in line with progressive surrogacy systems that are already operating in other parts of the world. In most of Canada and the US, surrogacy laws are similar to those proposed by the new review. Other countries also grant parenthood to a baby’s parents rather than the surrogate at birth, such as Mexico, Greece and Argentina, although their legal frameworks differ in other ways.
When I got pregnant I knew it wasn’t my baby that I was carrying and I didn’t develop a maternal bond with her. I felt delighted that I was able to give her parents the child that they wanted so much, and was filled with joy to see them holding her for the first time. To me, it’s obvious: she isn’t my baby and she never was. I’m pleased that, if these new proposals become law, future surrogates won’t have to go through the same legal process as I did to prove this.
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Kim Barrett is a freelance writer who gave birth as a surrogate in 2022
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