Surrogacy and the Law: A time for Reform?

Surrogacy is the process by which a child is carried through pregnancy by a woman who has entered into an agreement (before she started to carry the child) with the intention that, at birth, the child and parental responsibility for it will be transferred to the intended parents and that those persons will become the legal parents of the child.

It has been suggested that with surrogacy on the increase the number of children born this way could be 10 times higher than it was a decade ago. With this growth there are calls for reform to current surrogacy laws which struggle to adapt to changes in attitudes and lifestyles. The Law Commission of England and Wales has acknowledged that there are significant problems with the current law and the fact that there is insufficient regulation which makes it difficult to monitor the surrogacy process.

Current Law

The main legislation governing surrogacy comes from the Surrogacy Act 1985 and (in respect of making parental orders) the Human Fertilisation and Embryology Act 2008. Under the Human Fertilisation and Embryology Act 2008, when the child is born the surrogate mother will be treated as the child's legal mother and her husband will be treated as the father of the child (unless he did not consent to the arrangement). A surrogate mother cannot simply surrender her parental responsibility or legal parenthood.

For the intended parents this means waiting until the child is born before applying to the Family Court for a Parental Order to become the child's legal parents. Such an Order transforms the identity of that child, such that he or she becomes the intended parent's child and any legal links to other parents (whether genetically related or unrelated) are brought to an end. For the intended parents this could mean waiting many months to obtain a Parental Order, although during this time the child can and will usually live with the intended parents, they are, as a matter of law, unable to make decisions about the child in their care and are left unrecognised as the child's true parents.

The process and procedure for applying for a Parental Order is inevitably going to be highly emotional for the intended parents and does not come without its complexities. One of which is that the surrogate mother (and her husband if applicable) must give free and unconditional agreement, with full understanding to the Order being made and this agreement can not be obtained no earlier than six weeks after the birth of the child. This will be a long six weeks for any intended parent who will be anxious about any surrogate mother reneging on the whole agreement. Another relates to commercial surrogacy. Commercial surrogacy is illegal in the UK and the only payments allowed to be made to a surrogate throughout the pregnancy are 'reasonable expenses'. The Court, before making any Parental Order, must be satisfied that no money or other benefit (other than reasonable expenses) have been given or received and this could affect any Order being made.

Reform

What is clear is that the surrogacy process is uncertain for both the intended parents, who will have to wait considerable time and jump through various legal hoops to finally be recognised as the child's legal parents and for the surrogate who, should the intended parents fail to obtain a Parental Order within six months of the child's birth, could end up with legal responsibility for a child they had no intention of keeping.

Some of the reforms considered by the Law Commission include:

• A new surrogacy pathway that will allow the intended parents to be the legal parents from birth.

• Allowing international surrogacy arrangements to be recognised in the UK (currently even if the country in which the agreement and birth recognises the intended parents as the legal parents of the child, they would still need to apply for a Parental Order in the UK).

• Introducing regulation and safeguards to include independent legal advice and counselling.

• Changes to the application for a Parental Order, including removal of the 6-month deadline and removal of the surrogates absolute veto for an Order.

• Guidance on types of payment that might be appropriate and not go beyond what is 'reasonable'.

• Surrogacy for a single parent. The Court cannot currently make an Order for a single person to be the sole legal parent of that child born by surrogate.

The Law Commission is currently in the process of drafting their final report together with a draft bill which is expected to be published in Autumn 2022.

If you are currently going through the surrogacy process or are intending to in the future, it is imperative that you obtain legal advice to discuss the legalities and conditions of ensuring that you become the legal parents of the child.