The Law Commission of England and Wales and the Scottish Law Commission have announced recommendations to clarify UK surrogacy law. With current surrogacy laws remaining unchanged since the 1980’s, the concerns raised are that these have not progressed to address the pitfalls that intended parents are having to navigate in their efforts to start a family through this process. 

Under present statute, a surrogate (and her spouse or civil partner if she has one) are automatically considered to be the legal parents of any child she gives birth to. In order to extinguish the surrogate’s legal obligations and to obtain parental responsibility for the child, the intended parents must obtain a parental order from the court. This can be a lengthy and expensive process and the surrogate has the right to object to the order being made. The surrogate also cannot provide valid consent until the baby is at least six weeks old. Whilst waiting for the application to progress, the surrogate remains the legal parent and responsible for making medical decisions for the baby, notwithstanding that the child may by that point be living with the intended parents.

Currently the provision of advice on surrogacy agreements and advertising for a surrogate or to be a surrogate is also illegal. These restrictions can prevent surrogates and intended parents from being able to easily access appropriate advice, information and support, all of which are key when considering and understanding this complex area of law.

The issue of payments to surrogates is a very grey area that lacks any form of clear guidance. Unlike some other countries, commercial surrogacy is illegal in the UK.  Whilst surrogates can receive ‘reasonable expenses’, there is no clear definition of what this means. All payments made to the surrogate are considered within the application for a parental order and so must be clearly documented and explained in detail. As this information does not come before the court until the parental order application has been made, an analysis of the payments therefore does not take place until after the child is born and the payments have already been made. As the child is likely to be in the care of the intended parents by that stage, the court will be reluctant to refuse an application for a parental order when this is clearly in the best interests of the child. As such, varying amounts of payments could be approved in order to avoid frustrating the process, even if they do not appear to be in line with what is currently considered acceptable. 

The Commission proposes to address these issues by way of the creation of a new ‘surrogacy pathway’.  This aims to provide more clarity in respect of the surrogacy process as well as support to both the surrogate and intended parents. The proposals being put forward include:

  • The intended parents to be considered the legal parents immediately from birth, albeit the surrogate will have a short period in which to raise her objections to this – a time limit of 14 days has currently been suggested. There will therefore be no requirement for an application to court for a parental order;
  • Introducing categories of payment to be agreed for surrogates – this proposal is subject to commentary from the public and legal professionals as to what should be considered appropriate;
  • The new pathway including provision of additional safeguards by way of legal advice, counselling and criminal background checks, all of which will be overseen by a surrogacy regulator (see below);
  • The implementation of a register which can provide information to children born from surrogacy about their origins;
  • Removing the ban on providing advice on surrogacy agreements and advertising; and
  • Creating a surrogacy regulator to monitor agreements and regulate surrogacy organisations.

The public consultation on these recommendations is open until 27 September 2019 and final recommendations from the Commission are expected in 2021.