The Law Commissions' Consultation on Surrogacy

Closes 11 Oct 2019

Chapter 15: Payments to the Surrogate: Options for Reform

80. Consultation Question 72:

We invite consultees’ views as to whether payment of costs by the intended parents to the surrogate should be able to be:

81. Consultation Question 73:

We invite consultees’ views as to:

(1)          whether intended parents should be able to pay the surrogate essential costs relating to the pregnancy; and

(2)          the types of expenditure which should be considered “essential”.  

82. Consultation Question 74:

We invite consultees’ views as to:

(1)          whether they consider that intended parents should be able to pay the surrogate additional costs relating to the pregnancy; and

(2)          the types of expenditure which should be considered additional, rather than essential. 

83. Consultation Question 75:

We invite consultees’ views as to:

(1)          whether intended parents should be permitted to pay all costs that arise from entering into a surrogacy arrangement, and those unique to a surrogate pregnancy; and

(2)          the types of cost which should be included within this category.

84. Consultation Question 76: We invite consultees’ views as to whether they consider that intended parents should be able to pay their surrogate her actual lost earnings (whether the surrogate is employed or self-employed).
85. Consultation Question 77:

We invite consultees’ views as to whether they consider that intended parents should be able to pay their surrogate either or both of the following lost potential earnings:

(1)          her lost employment-related potential earnings (as defined in paragraph 15.35 in the text of the Consultation Paper); and/or

(2)          other lost potential earnings (as defined in paragraph 15.36 in the text of the Consultation Paper).

86. Consultation Question 78:

We invite consultees to share their experiences:

(1)          of the impact that payments received by a surrogate from the intended parents has had on the surrogate’s entitlement to means-tested social welfare benefits; and

(2)          where a surrogacy arrangement has had an impact on the surrogate’s entitlement to means-tested social welfare benefits, how that has been addressed in their surrogacy arrangement.

87. Consultation Question 79:

We invite consultees’ views as to whether intended parents should be able to pay compensation to the surrogate for the following:

We invite consultees’ views as to whether there are any other matters in respect of which intended parents should be able to pay the surrogate compensation.

We invite consultees’ views as to whether the level of compensation payable should be:

88. Consultation Question 80: We invite consultees' views as to whether intended parents should be able to pay compensation to the surrogate’s family in the event of the pregnancy resulting in the surrogate’s death, including through payment of the cost of life assurance for the surrogate.
89. Consultation Question 81:

We invite consultees’ views as to whether:

(1)          intended parents should be able to buy gifts for the surrogate; and

(2)          if so, specific provision should be made for these gifts to be modest or reasonable in nature.

90. Consultation Question 82:

We invite consultees’ views as to whether it should be possible for the intended parents to agree to pay a woman for the service of undertaking a surrogacy.

We invite consultees’ views as to whether, if provision is made for intended parents to pay a woman for the service of undertaking surrogacy, whether that the fee should be:

We invite consultees’ views as to whether, if provision is made for intended parents to pay a woman a fixed fee for the service of undertaking surrogacy, what, if any, other payments the law should permit, in addition to that fixed fee (please tick as many as you agree with):

91. Consultation Question 83:

We invite consultees’ views as to whether it should be possible for any payment the law permits the intended parents to pay the surrogate for her services to be reduced in the event of a miscarriage or termination of the pregnancy.

We invite consultees’ views as to whether, if the law permits a fee payable to the surrogate to be able to be reduced in the event of a miscarriage or termination, whether such provision should apply:

92. Consultation Question 84: We provisionally propose that the types of payment that are permitted to be made to surrogates should be the same, whether the surrogacy follows our new pathway to parenthood or involves a post-birth application for a parental order. Do consultees agree?
93. Consultation Question 85: We invite consultees’ views as to whether there are any categories of payment we have not discussed which they think intended parents should be able to agree to pay to the surrogate.
94. Consultation Question 86: We invite consultees to express any further views they have about the payments that intended parents should be able to agree to pay to the surrogate.
95. Consultation Question 87:

We invite consultees’ views as to whether there are specific methods of enforcing limitations that are placed on payments to surrogates that we should consider as part of our review:

(1)          for cases within the new pathway to parenthood; and

(2)          for cases where a parental order is made after the birth of the baby.

96. Consultation Question 88:

We provisionally propose that financial terms of a surrogacy agreement entered into under the new pathway to parenthood should be enforceable by the surrogate. Do consultees agree?

We provisionally propose that if the financial terms of a surrogacy agreement entered into under the new pathway become enforceable, the ability to do so should not be dependent on the surrogate complying with any terms of the agreement relating to her lifestyle.

Do consultees agree?