The Law Commission of England and Wales, in collaboration with the Scottish Law Commission, has released a joint report proposing a comprehensive new system for Governing surrogacy.
This new framework’s purpose is to better serve children, surrogates, and intended parents. The report includes draft legislation and the Government’s interim response to the Law Commission’s recommendations.
Current law
For a lot of people, having a child or children through surrogacy can be the only option to have children with a genetic connection to them.
Surrogacy involves a woman (known as the surrogate) carrying a child for another couple or individual (known as the intended parent/s) who becomes the child’s legal parents. In recent times, surrogacy has become much more popular, with the amount of children in the UK born through surrogacy nearly quadrupling over the past decade.
Surrogacy laws in the UK are primarily governed by the Surrogacy Arrangements Act 1985 and provisions within the Human Fertilisation and Embryology Act 2008.
Surrogacy Arrangements Act 1985
- Commercial surrogacy prohibited: It is illegal to advertise for surrogates or for surrogates to promote their services. Commercial surrogacy arrangements, where the surrogate is paid more than reasonable expenses, is also forbidden.
- Non-enforceable agreements: Surrogacy agreements are not legally enforceable in this country. This means that if a surrogate mother decides to keep the child, the intended parents are unable to enforce the agreement and are relying on the goodwill of the surrogate.
Human Fertilisation and Embryology Act 2008
- Legal parenthood: At birth, the surrogate mother is the legal mother of the child. If she is married or in a civil partnership, her spouse or civil partner is the legal father or second parent unless they did not consent to the surrogacy arrangement.
- Parental orders: Intended parents must apply for a parental order to become the legal parents of the child. The application would have to be submitted within six months of the child’s birth. The intended parents must be genetically related to the child, and the surrogate must consent to the order being made.
The current law means there are significant issues that exist such as, intended parents having to wait until the child is born and then applying to the Court to become the child’s legal parents, a process that which often takes six months to a year along with the added expense of Court proceedings. This means that during that period, the surrogate would remain the child’s legal parent, which can lead to issues such as it does not reflect the actual family dynamics and can potentially hinder the intended parents’ ability to make decisions for the child given that only the surrogate will have parental responsibility.
Furthermore, the lack of clarity regarding reasonable expenses and what is and what is not permissible from the intended parents to the surrogate complicates the practical application of the law.
What are the Law Commission’s recommendations for the reform?
- “A new pathway to legal parenthood: a new regulatory route for domestic surrogacy arrangements, under which intended parents would become parents of the child from birth, rather than wait for months to obtain a parental order. This would be subject to the surrogate having the right to withdraw consent. The new pathway incorporates screening and safeguards, including medical and criminal records checks, independent legal advice and counselling.
- A regulatory route overseen by non-profit surrogacy organisations: individual surrogacy agreements under the new pathway will be overseen and supported by non-profit Regulated Surrogacy Organisations (RSOs). RSOs themselves will be regulated by the Human Fertilisation and Embryology Authority (HFEA).
- Reforms to parental orders: despite the introduction of the new pathway, some intended parents will still need to obtain a parental order through the courts in order to become legal parents. We recommend reform to parental orders, include allowing the court to make a parental order where the surrogate does not consent, provided that the child’s welfare requires this. This would bring surrogacy law into line with other areas of family law.
- A new Surrogacy Register: created to give children born through surrogacy the opportunity to trace their origins when they are older, through a framework designed with surrogacy in mind.
- New rules on payments: our reforms provide clarity over which payments intended parents are permitted to make to the surrogate. Permitted payments include medical and wellbeing costs, those to recoup lost earnings, pregnancy support, and travel. Prohibited payments include those made for carrying the child, compensatory payments, and living expenses such as rent. These payment rules ensure that the surrogate is not left either better or worse off through surrogacy, which protects against the risk of exploitation.
- Commercial surrogacy prohibited: Our recommendations ensure that surrogacy continues to operate on an altruistic, rather than a commercial basis. Surrogacy arrangements will also remain unenforceable: the surrogate could not be forced to give the child to the intended parents because of an enforceable surrogacy contract, as seen under some “for profit” systems.
- International surrogacy agreements: many couples opt for agreements abroad, sometimes in countries where there is a particular risk of the exploitation of women and children. Our reforms are designed to encourage intended parents who want to use surrogacy to make domestic surrogacy arrangements instead. However, for those who do opt for international surrogacy arrangements, we also recommend legal and practical measures to safeguard the welfare of those children, for example through assisting them in acquiring UK nationality, and recording relevant information on the Surrogacy Register.”
Comment
If you are intending on embarking on this journey it is imperative that you seek independent legal advice regarding surrogacy agreements and also parental orders, especially given the latter will allow you to acquire parental responsibility for your child and will extinguish the automatic parental rights given to the surrogate.
How can Nelsons help
Rina Mistry is a Senior Associate in our Family Law team, advising on a wide range of family law work, and in particular specialising in private children’s law and children matters.
If you need further advice on the subjects discussed above, please contact us and we will be happy to discuss your circumstances in more detail and give you more information about the services that our family law solicitors can provide along with details of our hourly rates and fixed fee services.
For more information or advice, please call Rina or another member of our team in Derby, Leicester or Nottingham on 0800 024 1976 or contact us via our online form.
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