The Law Commission recently published their final recommendations for UK surrogacy law reform, following an extensive project that began in 2018.
Their proposals seek to modernise UK surrogacy law, and improve support for children, surrogates, and intended parents, whilst ensuring that UK surrogacy remains an altruistic rather than a commercial endeavour. Stowe Partner and surrogacy lawyer, Liza Gatrell, explains more.
UK Surrogacy: proposals for overdue law reform
Following a public consultation in 2019, the Law Commission released its recommendations for a comprehensive overhaul of UK surrogacy laws last week. The recommendations include a draft bill that, if approved by Parliament, could become law.
The use of surrogacy arrangements for family building has increased in recent years but UK laws have not kept pace, rendering them outdated and not fit for purpose. This causes an added layer of complexity and stress to what should be a happy time.
What is surrogacy?
Surrogacy is where a woman carries and gives birth to a child for the intended parents. The surrogacy can be traditional, whereby the surrogate also donates her egg, or gestational, where she has no genetic link to the child.
What is wrong with current surrogacy law?
Under the current UK surrogacy law, the surrogate will always be the child’s legal parent and if she is married her husband or wife will automatically be the second legal parent. This is the case even if the surrogate has no genetic links to the child. If the surrogate is unmarried then it is possible for one of the intended parents to be the second legal parent. The intended parents must then make an application to court within 6 months of the child’s birth for a parental order, which re-assigns the legal parentage to the intended parents.
Why is change needed to UK surrogacy law?
Existing surrogacy laws, which date back to the 1980s, frequently fall short of providing adequate protection for the surrogate or the intended parents. Surrogacy agreements are unenforceable and there is no scrutiny of surrogacy arrangements until after the baby has been born, by which point it is arguably too late. The inability to obtain a pre birth order in the UK leads many intended parents to travel overseas, meaning they are then faced with increased expense, immigrations laws that they must also navigate, and concerns about the exploitation of women and children.
The UK surrogacy laws have always been altruistic in nature, rather than commercial, and this will continue, but under the proposed changes the intended parents would be recognised as the legal parents from birth (subject to the surrogate’s consent). This is far more in line with the shared intentions that the surrogate and the intended parents have right from the start.
The new surrogacy pathway
The reforms will apply to UK arrangements only. Intended parents that travel abroad for their surrogacy arrangement will still need to make an application for a parental order.
The new pathway will allow the intended parents to be recognised as the legal parents from birth, subject to certain requirements and safeguards being met, these are:
- An agreement between the surrogate and the intended parents
- A preconception assessment of the welfare of the child to be born by the arrangement
- Independent legal advice for the intended parents and the surrogate
- Implications counselling to be undertaken by the intended parents and the surrogate
- Medical screening for the intended parents and the surrogate
- Enhanced criminal record checks
- Agreement of a Regulated Surrogacy Organisation to permit the arrangement onto the new pathway
There is also suggested reform to the payments that can be made to surrogates to clarify what constitutes a “reasonable expense”, which will provide much needed clarity.
Authorised payments will be:
- Costs related to the decision to enter an agreement
Unauthorised payments will be:
- General living expenses
The surrogacy reforms will see the creation of regulated bodies, called Regulated Surrogacy Organisations (RSOs), non-profit organisations governed by the Human Fertilisation and Embryology Authority (HFEA). They will oversee agreements under the new pathway and provide support to surrogates and intended parents.
Reforms to the parental order process
Parental orders will still be needed for international arrangements, but some reforms to the process have been recommended. One reform is to enable a parental order to be made without the consent of the surrogate where the welfare of the child required it.
It is also recommended that the surrogate’s spouse should not be a legal parent and so their consent will not be required for parental order to be granted.
A new surrogacy register
A new register would be created to allow anyone born through surrogacy to access information about their origins. Children born via surrogacy in England and Wales will be able to access non identifying information at age 16 and identifying information from age 18. In Scotland both would be from age 16.
These reforms do not go as far as some would have liked, but they do mean that UK surrogacy agreements will be better supported and regulated, which is welcome news. It is now for the Government to consider these recommendations. Watch this space.