The Surrogacy Series: Exploring The Past, Present And Future Of Surrogacy

The 1st – 7th August marks National Surrogacy Week in England & Wales. Irwin Mitchell’s Fertility Team of Excellence will be posting a series of articles exploring the past, present and future of surrogacy laws. Today our expert, Emily-Jo Moore, is exploring how surrogacy laws came to be and how they changed throughout those early years. 

The roots of surrogacy laws

The laws on surrogacy were first introduced under the Surrogacy Arrangements Act 1985. The Act was enacted primarily in response to the ‘Baby Cotton’ case, where a surrogate mother gave birth to a child for a couple, in exchange for payment. The surrogate mother involved was vilified in the British press as the process was viewed with suspicion and concern, and views about children being conceived by single and same-sex parents were very different to modern day. 

The primary reasons for introducing laws regarding surrogacy were to:

• Prevent commercial surrogacy: The Act aimed to prohibit commercial surrogacy arrangements to avoid the exploitation of women and children.
• Regulate surrogacy agreements: It established that surrogacy agreements would be unenforceable by law, meaning that the surrogate mother would be the legal parent of the child until a parental order was granted.
• Protect all parties involved: The legislation sought to protect the rights and welfare of the surrogate, the intended parents, and the child. 

Within five years, the Human Fertilisation and Embryology Act 1990 came into force. The Act stipulated that surrogacy arrangements were unenforceable, but the legislation created a legal mechanism for ratifying surrogacy arrangements (parental orders) retrospectively where a baby had been given to the intended parents and everyone consented. A parental order transfers parenthood from the surrogate to the intended parents in surrogacy cases. This order is significant because, without it, the intended parents do not have full legal rights over the child. The provisions creating parental orders were tacked on to the Bill at a late stage, rather than being properly designed as a framework for surrogacy. This has led to calls for reform to update the current process and make it less complex and stressful for both the surrogate and intended parents.

In 1997, the Labour government commissioned the Brazier Report which recommended new legislation to manage surrogacy properly, a tightening up of the rules on payments, and regulation of surrogacy agencies by the Department of Health. However, none of the Brazier Report’s recommendations were ever implemented. 

Over the years, there have been calls for reform to update these laws to better reflect modern family structures and societal attitudes. Please read our articles throughout this week to understand the current laws in place and the proposed reforms which have been recommended in parliament. 

For more information contact our Family Law Team.