Building Families Through Surrogacy - A Reform of the Law

Published: March 30th, 2023

7 min read

This week the Law Commission published a long-awaited report, proposing change and reform to the current law governing surrogacy in the UK. Throughout the project the Law Commission found that the current law does not work in the best interests of any of the people involved: children born through surrogacy, women who become surrogates and intended parents.

Current Law

As the law currently stands (under Human Fertilisation and Embryology Act 2008) when a child is born through surrogacy, the surrogate mother would be the legal mother of the child, whilst the father or second parent will usually be the spouse or civil partner of the surrogate. Therefore, at the time of birth neither intended parent will be the legal parents of a child born following a surrogacy agreement.

For the intended parents to become legal parents of that child they must apply to the Court for a Parental Order - a process that in reality could take 6-12 months and can only be granted if the surrogate provides her consent. If no consent is given, the Court have no ability to make the Parental Order even when it would be in the best interests of the child to do so.

The current law therefore raises a number of issues:

  • The surrogate, who does not intend to raise the child is legally responsible for that child unless the Court grant a Parental Order, this does not reflect the best interests of the chid who in majority of cases will be cared for by the intended parents from birth.
  • The intended parents will not have parental responsibility for the child until Parental Order is granted and so will be unable to make decisions on their behalf including any medical treatment.
  • There is no formal legal scrutiny of a surrogacy agreement until the child is born which is too late a stage to deal with any reservations.
  • There is no clarity regarding payments to the surrogate - this is particularly important as it is a condition for the granting of a Parental Order.
  • A consequence of the current law is it encourages intended parents to undertake an international surrogacy agreement in a country that gives them more certainty.

Reform

It is proposed that a new pathway to legal parenthood is created which will allow the intended parents to be legal parents from birth. This pathway will come with its own safeguards such as:

  • An agreement between the surrogate and intended parents.
  • A pre-conception assessment of the welfare of the child to be born.
  • Independent legal advice about entering into a surrogacy agreement for the surrogate and intended parents.
  • Implications counselling for all parties.
  • Medical screening.
  • Enhanced criminal records checks.
  • Agreement of a regulated surrogacy organisation to admit the surrogacy agreement onto the new pathway.

For those who qualify for the new pathway agreement there will be no need to apply to the Court for a Parental Order.

There will still be occasions where an intended parent will be required to apply for a Parental Order, although it is anticipated this will be on the rare occasion, and this includes when the surrogate withdraws her consent before the child is born. If consent is withdrawn after the baby is born then the intended parents will still be the legal parents, if the surrogate wants to be a legal parent, then she will need to make an application for a Parental Order.

Other reforms include:

  • A surrogacy register.
  • Improved employment rights for intended parents. The surrogate is to be treated the same as any other woman who is pregnant and the intended parents are treated in the same way as any other person with a new child.
  • There will be more clarity and transparency on what payments the intended parents can make to the surrogate.

For me this is a welcome reform, it takes away some of the fear and uncertainty for intended parents, who in the majority of cases, will not need to have to go through costly and invasive proceedings to become the legal parents of the child. It provides more clarity and regulation with emphasis of safeguarding and dealing with any reservations pre-conception for all parties involved. We now wait for the government's responses on the proposed reform.

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