Governing Surrogacy: The Law Commission Publishes Report on Suggested Reforms

English surrogacy laws look set to undergo much-needed modernisation, following the publication of the joint Law Commission for England and Wales and Scottish Law Commission’s report and draft bill on the subject on 29 March 2023.

The dire need for improvement in this area has been apparent for some time and is exemplified in the response to a survey conducted by Surrogacy UK working group in 2020, which found that 93% of respondents agreed that surrogacy law needed reform.

Current UK Surrogacy Law

The current law has developed from two key pieces of legislation: Surrogacy Arrangements Act 1985 and the Human Fertilisation and Embryology Act 2008. Whilst the courts have attempted to fill the gaps in legislation, the lack of clear regulation in this area has left surrogates and intended parents with uncertainty.

The key principles underpinning the current legal position are:

1. Contracts for surrogacy are unenforceable. The UK law prevents commercial arrangements for surrogacy and criminalises paying the surrogate anything over and above “reasonable expenses” (unless as authorised by the Court). In overseas jurisdictions (e.g., the USA), commercial arrangements are commonplace, and legislation is clearer and more robust. Some choose to enter these arrangements overseas and move the child back to the UK. But this method can be fraught with immigration issues and cause administrative difficulties for all parties.
2. When the baby is born, the surrogate is the legal parent. The surrogate’s parenthood arises automatically once the child is born. If the surrogate has a spouse or civil partner, they will become the second parent.
3. The intended parents must apply for a parental order to become the legal parents. The window to make the application is between 6 weeks and 6 months after the child is born. This is because the surrogate’s consent is needed for the parental order, and this is not valid until 6 weeks following the birth. Due to slow court procedures, it can sometimes take up to a year before the intended parents have parental responsibility for the child.

The current framework is routinely criticised as it fails to protect the interests of any of the parties involved in surrogacy.

Law Commission’s Suggested Reforms

The Commission’s report sets out reforms that seek to benefit each party and clarify the law. The Commission calls on the Government to:

1. Provide a pathway, where, if followed, the intended parents become the legal parents on the birth of the child. The pathway would introduce eligibility conditions before the child is conceived. These conditions would require that and at least one of the intended parents has a genetic link to the child. The conditions would also remove the possibility of overseas arrangements where the surrogate has no connection to the UK. The pathway would make the surrogate and intended parents subject to additional safeguarding checks to be carried out prior to conception, including counselling, medical checks, and legal advice.
2. Introduce a Regulated Surrogacy Statement: a standardised document which is signed by the surrogate, the intended parents, and a Regulated Surrogacy Organisation. The Statement would seek to regulate surrogacies and ensure parties’ intentions and responsibilities are clear from conception.
3. Formulate a surrogacy register, so the child can access information about their genetic parents, at an appropriate age.
4. Set out a clear framework for categories of payment the intended parents can make to the surrogate. The permitted payments include costs related to entering the surrogacy arrangement; medical insurance; travel and accommodation as well as modest gifts.
5. Implement reforms and guidance on nationality and immigration: to avoid unnecessary delays for the child entering the UK where the surrogate is based overseas.

Comment on Surrogacy Reform

Surrogacy is a high stakes area of law that requires appropriate consideration of the way it can appropriately protect the needs of parties who are making life-changing decisions. If implemented, the Law Commission’s reforms would bring clarity to the currently confused system. A well-regulated domestic surrogacy system would help improve outcomes for those contemplating surrogacy and encourage more people who cannot, or struggle to, conceive to consider surrogacy as a viable option.

Since 1990, there have been several Governmental committees and much parliamentary debate around the development of surrogacy law; but little legislative action. Whilst proactive discussions on reform are welcome, it remains to be seen whether the Commission’s calls will be answered by legislative reform.

If you are, or are considering becoming, a surrogate, or conceiving using a surrogate, the Family Team at Winckworth Sherwood can help you navigate the current law and any potential reforms.