Surrogacy – time for a change
In recent years, there has been an increase in the number of children being born to a Surrogate. Sadly, surrogacy laws have failed to keep pace. As a result, the existing surrogacy laws often fall short in providing the right level of protection for all parties involved.
The Law Commission has therefore considered the existing law and proposed a number of reforms. They considered that the new system must improve the current process, which can involve a complex and lengthy journey through the courts after the child has been born, resulting in some couples waiting up to a year after birth before they become legal parents of the child.
Under the current law, it is not uncommon for those who go through the surrogacy process without expert advice to be faced with the reality that the intended parents are not, in fact, the legal parents of the child. This can result in the surrogate continuing to have rights and obligations in relation to the child, but also the surrogate’s partner. The Law Commission were clear that this was a situation that needed to be rectified
The reforms would provide:
- A new pathway to legal parenthood: under which it is proposed that the 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.
- Regulation: individual surrogacy agreements under the new pathway will be overseen and supported by non-profit Regulated Surrogacy Organisations.
- Reforms to parental orders: despite the introduction of the new pathway, some intended parents, in limited circumstances, will still need to obtain a parental order through the courts in order to become legal parents. The Law Commissions 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.
- A new Surrogacy Register: this is introduced to give greater transparency and give children born through surrogacy the opportunity to trace their origins when they are older.
- New rules on payments: Permitted payments made to a surrogate 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 are intended to ensure that the surrogate is not left worse off through surrogacy, while protecting against the risk of exploitation.
- Commercial surrogacy is prohibited: the recommendations ensure that surrogacy continues to operate on personal basis rather than a commercial enterprise. Surrogacy arrangements will also remain unenforceable i.e. the surrogate cannot be forced to give the child to the intended parents because of an enforceable surrogacy contract.
- International surrogacy agreements: The reforms are designed to make domestic surrogacy arrangements a more attractive option. However, for those who do opt for international surrogacy arrangements, the Law Commissions 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.
It is hoped that these reforms will go some way to provide additional safeguards and a swifter outcome for all involved.
Joanna Lofthouse is a Senior Associate in the Family team at Raworths based in Harrogate.
Published on 21 June 2023