Surrogacy provides an opportunity for parenthood for those people who are otherwise unable to carry a pregnancy. As society has changed, surrogacy has become more common, and the number of children born from surrogacy has increased almost fourfold over the last decade.
UK laws concerning surrogacy
In the UK, surrogacy is governed by the Surrogacy Arrangements Act 1985 and certain provisions of the Human Fertilisation and Embryology Act 2008. Many believe that these laws are now outdated and are not suitable for modern parenthood.
At present, parents have to wait until the child has been born to apply to the Court to become the child’s legal parents and the process can take many months to a year to complete. During that period, the surrogate is the child’s legal parent and the intended parents may not have legal status. This does not reflect the reality of the child’s family life and can affect the intended parents’ ability to make decisions about the child in their care.
Under the present law, there is a lack of transparency, safeguarding, and support for all parties which creates a degree of uncertainty and stress. This is not in the best interests of the child, the surrogate, or the intended parents.
There is also a lack of clarity around the payments which can be made by the intended parents to the surrogate, and this makes the law difficult to apply in practice.
Recommendations for reforms to UK surrogacy laws
The Law Commission has recently put forward recommendations to update current UK surrogacy laws to make things simpler for intended parents. We have provided a summary of the recommendations below.
A new pathway to legal parenthood
Intended parents would become parents of the child from birth, rather than waiting months for a Parental Order. This would be subject to the surrogate having the right to withdraw consent during the pregnancy and shortly after the birth.
It will involve important screening and safeguarding checks before conception, to provide greater support and protection for the surrogate and the intended parents and to also protect the welfare of any child who may be born pursuant to a surrogacy.
The checks would be carried out by an independent state-regulated body, allowing meaningful scrutiny of the proposed surrogacy arrangement at an early stage. The current law involves scrutiny by the Court several months after the child is born.
It would cover medical checks, enhanced criminal records checks, independent legal advice, and implications counselling.
A regulatory route overseen by non-profit Regulated Surrogacy Organisations (RSOs)
RSOs are to be regulated by the Human Fertilisation and Embryology Authority (HFEA).
The support will be offered from before the surrogacy agreement is entered into and then through to, and beyond, the birth of the child.
A surrogacy agreement that breaks down is clearly not in the interests of the surrogate and evidence suggests that safeguards and support prior to and during the surrogacy agreement reduce the risk of this occurring.
Reforms to Parental Orders
Some intended parents will still need to obtain a Parental Order through the Courts to become legal parents.
It is recommended to 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 in line with other areas of family law.
A new Surrogacy Register
This register will be 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.
It would record both identifying and non-identifying information about the surrogates and the intended parents, it would signpost details of gamete donors held on the existing HFEA register as well as details of the fertility clinic used in the UK or overseas.
New rules on payments
There would be clarity over which payments the intended parents are permitted to make to the surrogate. Permitted payments will include medical and well-being costs, those to recoup lost earnings, pregnancy support, and travel. Prohibited payments will include those made for carrying the child, compensatory payments, and living expenses such as rent.
The payment rules are to ensure that the surrogate is not left either better or worse off through surrogacy, which protects against the risk of exploitation.
Intended parents will be required to make a statutory declaration between six and 12 weeks after the birth of the child as to whether they have made any form of payment that is prohibited. They can commit an offence under the current law if they make a false statutory declaration. They can commit an offence if they fail to make the statutory declaration.
Commercial surrogacy prohibited
It is proposed that surrogacy continues to operate on an altruistic, ‘selfless’ basis rather than a commercial basis.
Surrogacy arrangements are to remain enforceable, and the surrogate cannot be forced to give the child to the intended parents because of an enforceable surrogacy contract.
International surrogacy agreements
There are two main reasons people opt for international agreements. Firstly, they believe that they offer a more secure legal framework, for example by allowing the intended parents to be the legal parents of the child from birth under a contractual legal arrangement. Secondly, they believe it is easier to find a surrogate abroad.
Some people opt for surrogacy agreements, sometimes in countries where there is a particular risk of the exploitation of women and children.
The reform is designed to encourage intended parents who want to use surrogacy to use domestic surrogacy arrangements instead.
For those who do opt for international surrogacy arrangements, it is recommended that legal and practical measures are put in place to safeguard the welfare of those children. For example, by assisting them with acquiring UK nationality and recording them on the Surrogacy Register.
It is not intended to alter international surrogacy agreements but rather to ensure that the domestic regime is well-regulated and operates in the best interests of the child, surrogate, and intended parents.
International surrogacy arrangements are not eligible for the new pathway, so they will need to obtain a Parental Order through the Courts to become the child’s legal parents.
What happens if the surrogate withdraws consent?
Respecting the autonomy of surrogates is central to the Law Commission’s recommendations and under the new pathway, the surrogate has the right to withdraw her consent to a surrogacy agreement during the pregnancy and up to six weeks after birth.
If the surrogate was to withdraw their consent during pregnancy, then the surrogate would be the legal mother at birth and the intended parents would not be legal parents at birth and they would need to apply to the Courts for a Parental Order. The decision would therefore be with the Courts.
Once the child has been born, the legal parents can only be changed by a Court hearing in which the child’s welfare throughout his or her life will be the paramount consideration.
How Nelsons can help
Melanie Bridgen is a Partner in our expert Family Law team, who strives to empower and achieve the best outcome for her clients.
At Nelsons, we have a team of specialist solicitors in Derby, Leicester or Nottingham who are experienced in advising on a wide range of Family Law matters.
Our team of experts can offer legal advice and assistance if you are a surrogate or you are considering surrogacy because you are unable to carry a pregnancy yourself. This includes domestic (UK) and international arrangements.
If you have any family law-related queries, 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.
Please contact Melanie or another member of the team on 0800 024 1976 or via our online form.
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