Senior solicitor Catherine Currie, in our Family Law team, discusses the changes that may be coming in UK surrogacy law.
The joint report on Surrogacy Reform was published by the Law Commission of England and Wales and the Scottish Law Commission on 29 March 2023. This eagerly awaited report stretches just over 600 pages long and addresses the current law on surrogacy and its problems. It also makes recommendations for a reform of the law to make it work better for children, surrogates and intended parents.
The current law
The key aspects and principles in UK surrogacy law were introduced over 30 years ago in the Surrogacy Arrangements Act 1985. This statute provides limited regulation of surrogacy in the UK by making surrogacy agreements unenforceable i.e., a surrogate cannot be forced to hand a child over to intended parents just because the agreement says she should. The Act also creates criminal offences in relation to commercial surrogacy, such as prohibiting commercial surrogacy agencies. This is in keeping with surrogacy running on an altruistic, rather than commercial basis, in the UK and any payments to the surrogate are limited to “expenses reasonably incurred”.
The other key piece of legislation in this area is The Human Fertilisation and Embryology Act 2008 (“HFEA 2008”). The HFEA 2008, together with case law, provides the rules to determine who the legal parents of a child born through a surrogacy arrangement are. Under the current law, an intended parent is only recognised as the baby’s legal parent once the Family Court have made a parental order to grant legal parentage. This is at least 6 weeks post birth and can be up to a year to go through Court. Until then, the surrogate - and if she is married her spouse/civil partner - is/are the legal parent/s at the child’s birth.
Why the Law Commissions consider reform is required
In general, the Law Commissions consider that surrogacy law does not work in the best interests of the children born through surrogacy, surrogates, or the intended parents. The issues highlighted in the report can be summarised as follows:
- The inevitable delay between the child’s birth and the intended parents obtaining a parental order means that for a period the child lives with the intended parents, but they are not recognised as legal parents. This means they cannot (unless they have been granted parental responsibility through a separate legal process) make decisions for the child e.g., for medical treatment. Instead, the surrogate (and her spouse/civil partner), who does not intend to raise the child, is legally responsible for the child until a parental order is granted.
- Under the current law, there is no formal, legal scrutiny of a surrogacy agreement until the child is born and a parental order is applied for. That is often too late to deal with any potential concerns about the agreement.
- The law relating to payments that the intended parents can make to the surrogate lacks clarity. There is no definition of what “expenses reasonably incurred” which has resulted in concerns surrogates may in some cases receive payments beyond their expenses. Also, the limit the law places on payments, which the Law Commissions state “is unclear in the first place” is not currently being enforced. If the law has not been followed, the Court can refuse to grant of a parental order, but that will not usually be in the best interests of the child.
- A consequence of the current law is that intended parents are encouraged to enter into an international surrogacy arrangement, in a country that provides them with much greater certainty as to the outcome of the arrangement. International surrogacy arrangements mostly take place in countries where the intended parents are recognised as the legal parents of the child at birth and are named on the child’s birth certificate. However, in some instances, international arrangements raise concerns about the exploitation of women and children.
- There are other areas of the current law which were not developed with surrogacy in mind, e.g. employment law, or the law governing the right of individuals to access information about their origins.
Proposals for change
The report sets out a number of proposed recommendations and how these will aim to address the problems with the current law. They are:
- A new surrogacy pathway to parenthood to protect all interested parties. The new process would be overseen by non-profit Regulated Surrogacy Organisations (“RSOs”), which would be regulated by UK fertility regulator the Human Fertilisation and Embryology Authority. Under the pathway, certain requirements will need to be met for a surrogacy agreement to enter the pathway, allowing the intended parents to become legal parents at the child’s birth. There will need to be an agreement between the surrogate and intended parents, medical checks, enhanced criminal records checks, independent legal advice, implications counselling, an assessment of the welfare of the child to be born, and a regulated surrogacy statement off by an RSO.
There is also provision that the surrogate will be able to withdraw her consent during pregnancy or up to 6 weeks post birth to be considered a legal parent. In this case, the intended parents would have to apply for a parental order to gain legal parentage. Withdrawal by the surrogate after 6 weeks means the intended parents would be the legal parents, but the surrogate could apply to the Court to acquire legal parentage.
- Changes to parental order process. Parental orders will remain available for those who do not come under the new pathway e.g. where a surrogate withdraws her consent during pregnancy. In addition, if intended parents enter an international surrogacy agreement, then they will continue to need to apply for a parental order to be recognised as the child’s legal parents on their return.
Under the current law, the Court cannot issue a parental order if the surrogate does not consent. The changes would allow judges to make an order if they considered it in the best interests of the child. In addition, the Commissions recommend that in all surrogacy agreements (on the parental order route or new pathway) the surrogate’s spouse/civil partner should not be a legal parent of a child born through a surrogacy agreement. Therefore their consent will no longer be needed for a parental order to be granted.
- Clarity on permitted payments to surrogates. The recommendations set out categories of payments that would be permitted such as medical and wellbeing costs, recouping lost earnings, pregnancy support and travel. Prohibited payments include those made for carrying the child, compensatory payments and living expenses such as rent/mortgage. The report suggests the prohibition is regulated by the intended parents making a statutory declaration about the payments made to the surrogate.
- Reform and new guidance on nationality and immigration to avoid delays. The new recommendations seek to dissuade couples from opting for international agreements for the reasons stated earlier. However, the report also makes proposals for improving the process of intended parents bringing children born to surrogates overseas back to the UK. These will include allowing intended parents to begin applying for passports and visas before the child is born with the formal application then being made post birth.
- A surrogacy register to hold information about the surrogate and intended parents. This will have information for people born through surrogacy to access; including details of their surrogate, intended parents, whether donated sperm/eggs were used and the fertility clinic.
What happens next?
A draft bill setting out the intended recommendations for reform accompanies the report, and it will now be for the government to decide whether to implement the proposals and change the law. When that will happen is questionable – we do not have any indication as to whether Parliament will have time to consider the same any time soon. A condensed summary of the report can be found here in the meantime.
If you are considering entering the surrogacy route to parenthood, or you are a surrogate seeking advice, we can advise you on the current law and process involved in this country.
For further information or legal advice, please contact law@blandy.co.uk or call 0118 951 6800.
This article is intended for the use of clients and other interested parties. The information contained in it is believed to be correct at the date of publication, but it is necessarily of a brief and general nature and should not be relied upon as a substitute for specific professional advice.
