30 March, 2023
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.
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:
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:
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 If consent is withdrawn after the baby is born then the intended parents will still be the legal parents, if the surrogate wants to be a legal parent, then she will need to make an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.
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.
For more information contact Adrienne Baker in our Family/Divorce department via email or phone on 01254 580 000. Alternatively send any question through to Forbes Solicitors via our online Contact Form.
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