Surrogacy
The Law Commission of England and Wales has published its joint report with the Scottish Law Commission, outlining recommendations for a robust new system to govern surrogacy, which will work better for children, surrogates and intended parents. Our recommendations are accompanied by draft legislation. We have received the Government’s interim response to our recommendations.
Problem (Back to top)
Becoming a parent is the greatest day in many people’s lives. For some people, surrogacy can be the only way to have children who have a genetic link to them.
Surrogacy is where a woman – the surrogate – bears a child on behalf of another couple or individual, who intend to become the child’s legal parents.
As society has changed, surrogacy has become more common – the number of children born from surrogacy has increased almost fourfold over the last decade.
In the UK, surrogacy is governed by the Surrogacy Arrangements Act 1985 and certain provisions of the Human Fertilisation and Embryology Act 2008.
But there are significant problems with the law. Currently, intended parents have to wait until the child has been born and then apply to court to become the child’s legal parents. The process can typically take six months to a year to complete. During that period the surrogate is the child’s legal parent, which doesn’t reflect the reality of the child’s family life, and can affect the intended parents’ ability to make decisions about the child in their care.
A lack of clarity around the payments which can be made by the intended parents to the surrogate also makes the law difficult to apply in practice.
Project (Back to top)
This project came out of our 13th Programme of Law Reform, and the Scottish Law Commission’s 10th programme. In our open public consultation surrogacy received the most support of those projects which form part of the Programme, with over 340 people and groups responding and a significant majority saying the law was not fit for purpose. Our review was commissioned by the Department of Health and Social Care and supported by the Scottish Government as a joint project with the Scottish Law Commission.
We published our consultation paper in June 2019. We received over 680 responses, including many from individuals and organisations who endorse and support the use of surrogacy, along with individuals and organisations who oppose surrogacy.
Our recommendations for reform
The Law Commissions’ report and draft legislation outlines a new regulatory regime for surrogacy that offers clarity, safeguards and support – for the child, the surrogate and the parents who will raise the child (“the intended parents”).
- A new pathway to legal parenthood: a new regulatory route for domestic surrogacy arrangements, under which intended parents would become parents of the child from birth, rather than wait for months to obtain a parental order. This would be subject to the surrogate having the right to withdraw consent. The new pathway incorporates screening and safeguards, including medical and criminal records checks, independent legal advice and counselling.
- A regulatory route overseen by non-profit surrogacy organisations: individual surrogacy agreements under the new pathway will be overseen and supported by non-profit Regulated Surrogacy Organisations (RSOs). RSOs themselves will be regulated by the Human Fertilisation and Embryology Authority (HFEA).
- Reforms to parental orders: despite the introduction of the new pathway, some intended parents will still need to obtain a parental order through the courts in order to become legal parents. We recommend reform to parental orders, include allowing the court to make a parental order where the surrogate does not consent, provided that the child’s welfare requires this. This would bring surrogacy law into line with other areas of family law.
- A new Surrogacy Register: created to give children born through surrogacy the opportunity to trace their origins when they are older, through a framework designed with surrogacy in mind.
- New rules on payments: our reforms provide clarity over which payments intended parents are permitted to make to the surrogate. Permitted payments include medical and wellbeing costs, those to recoup lost earnings, pregnancy support, and travel. Prohibited payments include those made for carrying the child, compensatory payments, and living expenses such as rent. These payment rules ensure that the surrogate is not left either better or worse off through surrogacy, which protects against the risk of exploitation.
- Commercial surrogacy prohibited: our recommendations ensure that surrogacy continues to operate on an altruistic, rather than a commercial basis. Surrogacy arrangements will also remain unenforceable: the surrogate could not be forced to give the child to the intended parents because of an enforceable surrogacy contract, as seen under some “for profit” systems.
- International surrogacy agreements: many couples opt for agreements abroad, sometimes in countries where there is a particular risk of the exploitation of women and children. Our reforms are designed to encourage intended parents who want to use surrogacy to make domestic surrogacy arrangements instead. However, for those who do opt for international surrogacy arrangements, we also recommend legal and practical measures to safeguard the welfare of those children, for example through assisting them in acquiring UK nationality, and recording relevant information on the Surrogacy Register.
FAQs
We have produced answers to the key questions that we anticipate people may have about our final report. These are available in our FAW document.
Next steps
We published our final report and draft legislation on 29 March 2023. We received the Government’s interim response on 8 November 2023, in a letter from Minister Maria Caulfield MP, Parliamentary Under Secretary of State, Department of Health and Social Care. This stated that the Government is working to review our report’s recommendations, that a full response will be published in due course, and that parliamentary time does not allow for the recommended changes to be taken forward at the moment. We await the Government’s full response to our recommendations.
Documents (Back to top)
Consultation documents and responses
Reports and related documents
Building families through surrogacy: a new law – Volume I: Core Report
Building families through surrogacy: a new law – Volume II: Full Report
Building families through surrogacy: a new law – Volume III : Draft Bill
Letter from DHSC 8 November 2023
Contact (Back to top)
For general enquiries, you can contact the team at: surrogacy@lawcommission.gov.uk