Stowe Solicitor Megan Brookfield, looks at the reasons why the Law Commission’s delayed surrogacy bill is still vital to ensure that UK law keeps pace with family life.
It has recently been announced by the Law Commissions that the draft surrogacy bill has been delayed until Spring 2023. It’s at that point the government will consider and debate the bill, meaning there will be even more time needed to pass the legislation through parliament and then implement the changes, further delaying any law reform.
The current surrogacy law
The Law surrounding Surrogacy in England and Wales has not changed for a significant period of time, despite the ongoing change and variety in family dynamics across the UK and the increasing number of people choosing surrogacy.
Surrogacy is governed by the Surrogacy Arrangements Act 1985 and in addition, the Human Fertilisation and Embryology Act in 2008. It has been acknowledged by the Law Commission that there are clear problems with the current legislation.
The problem with UK surrogacy law
For example, when a child is born via a surrogate, the surrogate will be treated as the child’s legal mother. If the surrogate is married, her husband will be treated as the legal father. Under current legislation, the intended parent/s may not obtain legal parentage, without firstly making an application to Court for a Parental Order.
Currently, an application for a Parental Order can only be applied for after the child is born and following a 6 week period after the birth to allow the surrogate sufficient time to recover and determine whether she consents to the intended parent/s obtaining legal parentage.
The process of becoming legal parent(s) can take months and affect the ability of intended parent(s) to make necessary decisions about their child or begin the life of their child in the way that they wish to.
The Law Commission also highlights that insufficient regulation makes it difficult to monitor surrogacy in the UK to ensure high standards and ethics.
Parental Order criteria
Commercial Surrogacy is illegal in the UK. This poses many risks to many intended parents. The current criteria to obtain a Parental Order is as follows:
- The applicant or at least one of the applicants (intended parents), must be domiciled in the UK
- There must be a genetic link between the child and the intended parent/s
- The child must be living with them at the time of the application
- The application must be made within 6 months of the child’s birth
- If there are two applicants, they must be in an enduring family relationship, i.e. as partners, in a civil partnership or married
- The surrogate must give her full and unconditional consent, but this cannot be until the child is 6 weeks of age
- The surrogate is to be paid reasonable expenses only.
A genetic link
There are a number of problems with the current legislation. Firstly, in respect of the genetic link required. If there is no genetic link between the child and the intended parent/s, the intended parent/s cannot obtain a Parental Order. This can cause serious issues, particularly in surrogacy arrangements entered into overseas. If this situation arises, a child can be left incredibly vulnerable and ultimately, parentless. The intended parents must then consider adoption as their final resort.
The risks of international surrogacy
It is extremely common for intended parent/s to travel to other countries, often America, to enter into surrogacy arrangements due to their advanced legislation. However, many of the intended parent/s do not obtain the appropriate legal advice prior to travelling and are often unaware of the risks to all parties.
A question of ‘reasonable expenses’
In addition, issues often surround what is considered ‘reasonable expenses’. Before making any Parental Order, the Court must be satisfied that no money or other benefits save for reasonable expenses, have been received by the surrogate. However, there is no legal definition of what constitutes ‘reasonable expenses’.
This lack or clarity poses risks to both the surrogate and intended parents alike, particularly if expenses paid are later deemed unreasonable and result in the decision not to grant a Parental Order. Open interpretation of the criteria can have a huge impact on the outcome of the application for a Parental Order, even causing arrangements to break down. Understandably, this is devastating for all involved.
What does reform look like?
The Law Commission has proposed several changes to the current legislation, focusing mainly on when the intended parents should be recognised as the legal parents, and clarification on reasonable expenses.
Some of the reforms proposed by the Law Commission are:
- Changes to the criteria to obtain a Parental Order, including abolishing the need for a genetic link
- Guidance in relation to appropriate payments to surrogates, including enforceability of payments to be made to the surrogate under a surrogacy agreement
- International surrogacy arrangements to be recognised in the UK.
What’s next?
It is clear that legislation in the UK has not kept pace with the ever-changing family dynamics. As a result, people are instead driven to making surrogacy arrangements overseas. However, as surrogacy continues to grow, so do the risks without proper legislation.
With the announcement that The Law Commission’s final report and draft bill on proposed surrogacy law reform will not be published until Spring 2023, it’s clear that it will be some time before UK surrogacy laws are updated. In the meantime, it is imperative that both intended parents and surrogates seek legal advice as soon as possible, to avoid the risk of unexpected issues later down the line.
Useful links
International surrogacy – what you need to know
UK Gov Surrogacy: legal rights of parents and surrogates
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