Assessing the Impact of Surrogacy ‘Reforms’ on Gamete Donation

There have long been calls for reform to surrogacy law – and the Law Commissions’ recent project represented a significant step towards meaningful change. However, the regulation of surrogacy cannot be considered in isolation and inevitably raises questions about other reproductive technologies. A symposium, funded by Broadly Conceived, explored the broader implications of the Law Commissions’ recommendations relating to surrogacy. In this blog series, each presenter from the symposium reflects on the impact of these recommendations on current (and future) reproductive practices.

Dr Katherine Wade, University of Bristol Law School

Key words: gamete donation; reproduction, origin information; surrogacy

Image credit: Pixabay, sciencefreak

Introduction

Surrogacy and gamete donation are both forms of assisted reproduction which have been the subject of legal change in the past few decades, as scientific processes and family formation have evolved. While there are separate legal frameworks for both, gamete donation and surrogacy can overlap in practice. Surrogacy, the process whereby a person carries a pregnancy for other people, can also involve gamete donation, if donor egg or sperm are used in the creation of the embryo. Additionally, the surrogate can contribute her own egg, either by being inseminated with the intended father’s sperm (traditional surrogacy) or donating her egg for fertilisation with the intended father’s sperm through IVF.

In March 2023, the Law Commissions launched their report, Building families Through Surrogacy: A New Law which could impact the regulation of gamete donation, particularly in relation to children’s origin information. The Law Commissions propose the establishment of a ‘Surrogacy Register’ and a process for accessing information, which would include those who contributed gametes. Since there is a regulatory framework for access to information about gamete donors already in place, if the Law Commissions’ recommendations were introduced, it would lead to different systems for access to information for children born through surrogacy and donor-conceived children. This could then, in turn, push the law on gamete donation in a similar direction. However, it is also possible that gamete donation would be seen as distinct and requiring its own framework for the collection and disclosure of information.

 

Law Commission Recommendations on Origin Information

The Law Commissions recommend the establishment of a Surrogacy Register, which would record information about domestic and international surrogacy. This would include ‘identifying and non-identifying information about surrogates, intended parents, and gamete donors involved in surrogacy agreements’ (Recommendation 61). The Law Commissions also recommend that the Register should record whether the surrogate contributed her own egg (Recommendations 39 and 48). Gamete donors who donate in clinics licenced by the Human Fertilisation and Embryology Authority would continue to be recorded in the current HFEA Register (Recommendation 61). If introduced, children born through surrogacy in England and Wales would be able to access non-identifying information about individuals in the Register at age 16 and identifying information at age 18. It is further recommended that access to identifying information should be allowed at age 16 and 17, unless the person lacks capacity under the Mental Capacity Act 2005. The Law Commissions’ recommendations go further and suggest that young people should be able to access identifying and non-identifying information under the age of 16, without parental consent, if they are Gillick competent. i.e., if they have ‘achieve[d] a sufficient understanding and intelligence to enable [them] to understand fully what is proposed’. Due to different law on capacity in Scotland, the Law Commissions propose access to both identifying and non-identifying information at age 16 and access to information under 16, where the applicant meets the test for legal capacity.

It should be noted that anonymous gametes and surrogates may be permissible in other jurisdictions. Therefore, the Law Commissions have proposed that:

‘…the court will have the ability to dispense with the identification of the surrogate and those who contributed gametes and allow instead the fact that the surrogate could not be identified, or that anonymously donated gametes were used, to be recorded in the Surrogacy Register’ (para 10.164).

The Law Commissions also recommend that young people should be made aware of the nature of their birth through surrogacy.  They propose that birth certificates and parental order certificates (which would be used for some domestic and all international surrogacy) should be clear that the birth was was the result of surrogacy (see Recommendation 67 and para. 13.216).

The Potential Implications of the Recommendations

First, if the Law Commissions’ recommendations were implemented, there would be a HFEA Register for gamete donation and a Surrogacy Register for surrogacy, with different rules regarding age of access. Children who are born through surrogacy could, before the age of 18, access identifying information about the surrogate, those who donated gametes (non-HFEA donors or surrogates) and any intended parents, whose identity they do not know. Donor-conceived children (including those born through surrogacy using HFEA donors) would be able to access identifying information at age 18. The question which arises is whether it is best to equalise the legal approaches, to ensure the same age of access for all groups. In this respect, the HFEA have recently proposed models whereby donors could opt to become identifiable before the child turns 18 or be identifiable to parents at or before birth. It should be noted, however, that not all of these models were met with support. The Donor Conception Network, for example, argued that the latter model shifts the relationship to one between the HFEA and the parents, rather than one between the HFEA and the donor-conceived person. I have argued that origin information could be released on the basis of both parental and child consent or assent (before the age of 16), in line with the child’s preferences for the extent of origin information desired. This ‘participatory model’ could be considered for both surrogacy and gamete donation. However, there is evidence that disclosure of surrogacy to children is common, whereas disclosure of gamete donation and traditional surrogacy is variable, meaning all of these potential changes are more relevant to the issue of children accessing information about gamete donors than the issue of accessing information about the identity of surrogates.

Second, if the proposed system were implemented, birth certificates/parental order certificates of children born through surrogacy would notify them that they were born through surrogacy, whereas no such notification system exists for gamete donation. If the law were changed for surrogacy, it might raise the question of introducing a notification system for gamete donation. I have argued for notification of gamete donation on birth certificates, based on children’s rights to know their origins outweighing parental autonomy interests. This seems to be same stance the Law Commissions take in relation to surrogacy. They state: ‘[w] e are not persuaded by the concerns of those who consider that the intended parents should be left to decide whether to tell their child of the surrogacy; this is a matter that the child has a right to know’ (para. 13.228). Again, since there are studies showing high levels of disclosure of surrogacy to children, if the law were changed, the bigger impact might be seen in the area of gamete donation, including traditional surrogacy.

Third, disparities could also arise between children born through domestic and international surrogacy. For domestic surrogacy, identifying information would be collected in most cases. However, for some children born through international surrogacy, if anonymous surrogates and/or gamete donors were used, no information would be available. This could be addressed in the same way as the Law Commissions address the issue of impermissible payments in international surrogacy. They suggest the imposition of civil penalties (fines) for parents who make payments which fall outside the ‘permitted payments’ list the Law Commissions proposed in Chapter 12. This could potentially be introduced for failure to provide information for the Surrogacy Register. This could dissuade intended parents from using anonymous gametes or surrogates, in the same way as the civil penalties for impermissible payments seeks to do. It would seem unusual for parental orders to be issued without penalties for parents who use anonymous gametes, considering that donor anonymity was removed in 2005, based on research and consultation with those with lived experience of gamete donation.

Conclusion

The Law Commissions’ Report takes a different stance to the current law on donor conception, by advocating for birth certificate disclosure and early access to origin information. This stance was based on children’s rights to identity and to know their parents (Articles 7 and 8 UN Convention on the Rights of the Child), children’s interests in accessing information for health reasons and empirical research on the value of openness in assisted reproduction. Whether this stance is likely to move the law on donor conception towards early access to origin information and birth certificate notification will depend on whether these assisted reproductive processes are seen as ethically distinct, or whether it is preferable to have consistency regarding children’s access to information about their gestational, genetic and social origins. It could be argued that gamete donation may have more lifelong relevance to children and that their interest in knowledge of the donor (and genetic relatives) may change as they mature, whereas gestational surrogacy may not have the same impact, due to the lack of a genetic link with the surrogate and her family. On the other hand, since the values and views of each individual born through such techniques will vary, it may be seen as important to ensure equal access to information for all groups to enable them to make their own decisions about accessing information about those individuals who were involved in their conception and birth.