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Former top judge calls for the ban on commercial surrogacy to be lifted

Last week, Sir James Munby, the former President of the Family Division of the High Court of England and Wales, told the Mail on Sunday that he believes the ban on paying women to be surrogates should be lifted.

While it is legal for surrogates’ reasonable expenses to be paid, it is currently illegal to pay a woman to be a surrogate under the Surrogacy Arrangements Act 1985. The law in the UK is therefore different to that in multiple foreign countries. Commercial surrogacy is legal in some US states, where the cost of commercial surrogacy generally ranges from $112,000-$146,500, according to Sensible Surrogacy, an American surrogacy programme.

Commercialising surrogacy raises important ethical questions, including whether or not it commodifies surrogates’ bodies. On the other hand, lifting the ban may increase the number of available surrogates, and so enable more families to have children.

Sir James cited a change in society which he believes legislators should adapt to, and said that he is in favour of a system of better regulation, rather than prohibition. Surrogates’ expenses typically range from £12,000-£18,000, and Sir James believes that it is difficult for a judge to determine what a ‘genuine expense’ really is.

Sir James also emphasised the importance of enabling older women to have children, and said that the increase in life expectancy justifies allowing women in their 50s and 60s to become mothers. Kim Cotton, the first surrogate mother in the UK, told the Independent in 2017 that she “couldn't imagine not being able to have children”.

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