A recap on the surrogacy law reforms – is it finally time for a change?

In March of this year, we had the first insight into the long overdue proposed surrogacy law reforms. This was particularly interesting as the law in this area has been stagnant for over 30 years, so it was about time we had some movement, to keep up with modern families.

Pre law reform 

The laws on surrogacy were first introduced under the Surrogacy Arrangements Act 1985. Whilst other areas of fertility law have arguably progressed, surrogacy law has been left behind and remained unchanged.

It was only in 2019 that single people were allowed to apply for a parental order. Previously, only couples in an enduring relationship were entitled to make such an application, which goes to show how dated this area of legislation is.

For a while now, the courts have felt inclined to find creative solutions to get around any complications faced during the surrogacy process, however some cases have left the child born, in a state of legal limbo.

The current law says:

• The surrogate is the legal parent of the child at birth leaving the intended parents to apply for parentage by obtaining a parental order through the Courts. This process can take up to 12 months after birth.
• Surrogacy agreements are unenforceable, and therefore a surrogate cannot be forced to hand over a child to the intended parents even if she has no biological connection to the child.
• Commercial surrogacy is a criminal offence and there are restrictions on what ‘reasonable’ payments and expenses may be offered to surrogates. This is ambiguous, leaving surrogates in uncertain territory with what they can or cannot claim back legally, and intended parents unsure of what they can offer.
• Parents who decide to have a child through a surrogate overseas may be the legal parents of the child in the country in which the child is born, however this may not extend to the UK, leaving the child in limbo once more.

So, what will change?

The report has set out a list of the proposed changes which aim to address the issues we face under the current legislation.

• Transfer of parenthood made easier – there will be a new pathway to parenthood requiring certain conditions to be met in order for the intended parent(s) to become legal parents at the time of the child’s birth without the need of court intervention. There will also be certain safeguarding checks and requirements of the agreement drawn up between the intended parents and the surrogate. These checks will include medical history, criminal record history, requirement of independent legal advice, counselling, welfare assessments and a statement signed off by non-profit Regulated Surrogacy Organisations.  Parental orders will only need to be used in certain circumstances; one being if the new pathway criteria or safeguarding checks are not met, the second being if the surrogate withdraws their consent whilst pregnant or up to 6 weeks after giving birth to the child.
• Clarity on expenses and payments to the surrogate – the payment and expenses have been set out in categories, recommending what is permitted. Examples of the categories are; medical and wellbeing costs, loss of earnings, and support and travel.  The law commission report provides details of some research they undertook into the average cost of surrogacy arrangements in the UK. At the time of making the report, they saw that the average costs of an arrangement was £14,795.54, which is why it is so important to have clarity around payments that are permitted and those that are not.
• Surrogacy register – there will be a register holding information about the surrogacy arrangements. This will provide access to information about the surrogate, the intended parents and any details of sperm or egg donors to give children born through surrogacy the opportunity to know more about their family.
• Overseas surrogacy – although it is not recommended to opt for international surrogacy, the report details some suggestions of how to improve the process for those intended parents who do choose overseas surrogacy options, such as being able to apply for passports and visas before the child is born.

The report highlights some important areas for change, and the next step is to wait and see how the government will respond. If these changes are implemented, it would significantly improve the outcome for everyone involved in the surrogacy process and bring this area of law in line with existing children law to enable courts to make a decision in the best interests of the child.