Law Commission’s public consultation on surrogacy closes soon

With surrogacy increasingly used to create families, this is an important opportunity for practitioners to help shape the law governing this area so it works better in practice.

The numbers of children born through surrogacy have increased tenfold in the last decade. But the current law contained in the Surrogacy Arrangements Act 1985 and certain provisions of the Human Fertilisation and Embryology Act 2008 is unwieldy and outdated.

What are the Law Commission’s key proposals?

• The intended parents should have the status of the child’s legal parents from the moment of birth – if certain criteria are met. (These criteria are that there is a written agreement, screening, implications counselling, legal advice and the involvement of a regulated UK surrogacy organisation or fertility clinic).  The surrogate would have 35 days (slightly less time in Scotland) from the date of birth to object.
• A regulator for surrogacy and regulated surrogacy organisations should be created.
• New safeguards should be introduced to reduce the risk of surrogacy arrangements breaking down.
• A national register should be set up so people born via surrogacy can find out about their origins.
• The need for intended parents to have a genetic link to the child should be removed where medically necessary (stopping discrimination against people who are infertile). Though it would remain in the case of international surrogacy arrangements.
• International surrogacy arrangements should be recognised in the UK (if the other countries’ surrogacy laws adequately protect everyone involved).
• Existing parental order and immigration processes should be streamlined, which will remain as a safety net for those families through surrogacy who fall outside the new automatic recognition pathways.

Would these proposals, if implemented, improve the legal framework related to surrogacy?  

The broad scheme of the proposals is a basis for optimism.  The legislation seems to be moving forward to provide a pragmatic scheme safeguarding the interests of surrogates, intended parents and most of all the intended children, who should always be at the heart of any proposed child law.

Under the existing laws, new parents often wait many months, and sometimes a year or more, until a court grants them a parental order.  This means children and the parents caring for them are in legal limbo as the surrogate and, if she is married, her husband, wife or civil partner remain the legal parents under UK law until the order is made.

In international surrogacy cases it can sometimes result in children being stranded overseas for months after they are born.

Unsurprisingly, the thorny issue of payments to surrogates has been less straightforward to resolve. And the Law Commission asks which of 8 categories of payments intended parents should be able to make to a woman who will be a surrogate. The consultation paper does not include proposals about what payments should be allowed and rightly invites responses on this issue from all stakeholders although it does suggest that when payments have been agreed they may be capable of being enforced by the surrogate.

Surrogacy involves the most vulnerable members of our society: children, childless adults who desperately wish to be parents and women who believe that they will be able to carry a child for the benefit of someone else. Current UK surrogacy legislation does not do enough to protect them.

Commenting on the consultation proposals

View the full Law Commission consultation document: https://consult.justice.gov.uk/law-commission/surrogacy/

The consultation papers is 475 pages and contains 118 questions.

Draft legislation is likely to be published in 2021

The Law Commission anticipate that recommendations for reform of the law and accompanying draft legislation will be published in 2021.