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Title: Reforming UK surrogacy law : bridging the gap between regulation and practice
Author: Walmsley, Emma
Awarding Body: University of Liverpool
Current Institution: University of Liverpool
Date of Award: 2019
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The law regulating surrogacy in the UK is outdated, piecemeal and increasingly unfit for purpose. The Surrogacy Arrangements Act 1985 (SA Act 1985), which prohibits commercial surrogacy in the UK, was enacted at a time of great hostility towards surrogacy and other forms of Artificial Reproductive Technologies (ARTs). In recent years the practice of surrogacy 'has been accepted as a method of enabling childless couples to experience the joy and fulfilment of parenthood.' Despite the growing acceptance of surrogacy, regulation - including the Human Fertilisation and Embryology Act 2008 - makes it difficult for intended parents to apply for a parental order following surrogacy. A parental order, which confers joint and equal legal parenthood and parental responsibility upon both intended parents, 'ensures the child's security and identity as lifelong members of the intended parent's family'. The legislation entrenches the two-parent nuclear 'ideal' by only allowing couples, one of whom must have contributed their gametes to create the child, to apply for a parental order. As such, a plethora of 'less conventional' families are prohibited from applying for a parental order, including single parents, non-genetic parents and platonic co-parents. In addition to the narrow view of parenthood adopted by UK regulation, the ban on payments, the unenforceability of contracts, and the prohibition on advertising has resulted in a shortage of surrogates. Some intended parents have resorted to the 'dangerous and murky waters of the internet' and entered into high risk 'do-it-yourself' arrangements which have led to legal complications and the exploitation of vulnerable women. Other intended parents have ventured overseas and entered international commercial surrogacy arrangements. Such arrangements result in conflict of laws and children being left 'marooned stateless and parentless'.4 It is clear that surrogacy operates in a different context to the one that existed at the time of the SA Act 1985, and urgent reform is required to bridge the gap between regulation and practice. The declaration of incompatibility issued by the High Court between section 54 (1) HFEA 2008 and Articles 8 and 14 of the European Convention on Human Rights presents an opportunity to revisit the surrogacy landscape.5 This thesis uses a combination of doctrinal analysis and empirical work to identify the reforms that are necessary to protect the procreative liberty of intended parents and the rights of the resulting child; two concerns which have been strikingly absent from the law regulating this area.
Supervisor: Alghrani, Amel Sponsor: Not available
Qualification Name: Thesis (Ph.D.) Qualification Level: Doctoral