Surrogacy Law Reforms – One Year On From The Proposals For Change, Where Are We Now?
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, Joanna Uzoka, provides an update on the proposed reforms to surrogacy law in England and Wales.
In June 2019, we had our first insight into the discussions around surrogacy law reforms when the Law Commission published their consultation paper, however it was not until March 2023 that the commission published their final report and draft legislation, setting out 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.
Surrogacy has become more common in the UK, and we have seen a significant increase in the number of children being born through surrogate mothers over the years, however the need for a surrogacy law reform in the UK is an ongoing debate.
Law Commission Recommendations March 2023
The report set out a list of the proposed changes which would aim to address the issues faced under the current legislation.
- Transfer of parenthood made easier – the need for there to be a new pathway to parenthood requiring certain conditions to be met in order for the intended parent(s) to become legal parents in the UK at the time of the child’s birth without the need of court intervention. There should also be certain safeguarding checks and requirements of the agreement drawn up between the intended parents and the surrogate. These checks with in the UK 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 provided details of some research they undertook into the average cost of surrogacy arrangements within 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 in the UK.
- Surrogacy register – there would 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 detailed 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.
Updates since the March 2023 report
It has now been over a year since the recommendations were set out by the Law Commission. An interim response from the government was issued in November 2023, acknowledging the importance of the Law Commission’s recommendations on surrogacy laws, however the government were unable to prioritise any changes to the statute at the time. Health minister, Marisa Caufield, mentioned that the recommendations would be reviewed further, and that we could expect a full response to be published by the government in March 2024, but unfortunately this is yet to be issued.
The recommendations provided for some significant changes in the legislation to be made, however there are a few practical steps that could be taken to improve the situation for intended parents involved in surrogacy, even without new legislation. Here are some key considerations:
- Family Procedure Rules (FPR) Changes - Courts could be required to consider granting parental responsibility to intended parents at the first hearing, making the process clearer for those representing themselves. This could be made possible by some small changes to the FPR, without any need for a change in legislation.
- Parental Order Reports - Allowing automatic disclosure of these reports to intended parents, bypassing the need to ask for the court’s permission to do so, could streamline the process.
- Home Office and Passport Office Procedure - Simplifying the process for obtaining British passports for children born through surrogacy abroad could reduce the lengthy stays for the intended parents. in the child’s birth country as currently required.
These changes could make a significant difference while the broader legislative recommendations are still under review. There is still a lot of room for change, and following the recent general election, it will be interesting to see how our new government tackles the drive for a reform.
