The use of surrogacy – where a woman becomes pregnant and gives birth to a child to be brought up by another family – has increased in recent years, and is recognised by the Government as a legitimate form of building a family.
Despite the increased demand, surrogacy laws have failed to keep pace. Dating in part from the 1980s, existing surrogacy laws often fall short in providing the right level of protection for all parties involved.
The Law Commissions’ report and draft legislation, the culmination of a detailed review, outlines a new regulatory regime that offers more clarity, safeguards and support – for the child, surrogate and parents who will raise the child (“the intended parents”).
Under the reforms, a new system governing surrogacy agreements, “the new pathway”, would come into force – the first time that the law has introduced a route for surrogacy where scrutiny of arrangements starts pre-conception.
Overseen by non-profit organisations operating under a regulatory body, the Commissions’ new pathway would ensure rigorous pre-conception screening and safeguarding. If the right conditions are met, it would allow intended parents to become the legal parents of the child from birth, subject to the surrogate’s right to withdraw her consent.
The new system would improve the current process, which involves a sometimes complex and lengthy journey through the courts after the child has been born, resulting in some couples waiting up to a year after birth before they become legal parents of the child.
The report also outlines a clearer set of rules governing the payments that can be made to surrogates, under which “for profit” commercial surrogacy would continue to be strictly prohibited.
A Surrogacy Register would also be created under the new regime – allowing surrogate children to trace their birth origins later in life.
By having a well-regulated domestic surrogacy regime that works in the best interests of all involved, the Law Commissions’ reforms are designed to dissuade UK couples from opting for international surrogacy agreements, which can bring a greater risk of exploitation of women and children.
Commenting on the surrogacy law reforms, Professor Nick Hopkins, Family Law Commissioner at the Law Commission, said:
“The use of surrogacy to form a family has increased in recent years, but our decades-old laws are outdated and not fit for purpose. Under current law, surrogacy agreements are often a complex and stressful process for all involved.
“We need a more modern set of laws that work in the best interests of the child, surrogate, and intended parents. Our reforms will ensure that surrogacy agreements are well-regulated, with support and security built into the system from the very beginning.
“By introducing a new regulatory route with greater legal certainty, transparency and safeguards against exploitation, we can ensure that we have an effective regime for surrogacy agreements that places the interests of the child at their heart”
Professor Gillian Black, Commissioner at the Scottish Law Commission, commented:
“Our recommendation for a ‘new pathway’ ensures that critical screening and safeguarding measures for the surrogate and intended parents will take place before conception. These safeguards will be overseen by a state-regulated and approved body, which will provide support to all parties in their decision to enter a surrogacy agreement. The welfare of the child is paramount in all of our reforms.
“We hope that the Government will endorse these recommendations for law reform, to ensure that surrogacy law properly meets the needs of surrogate-born children, surrogates, and intended parents.”
Surrogacy reforms from the Law Commission of England and Wales, and the Scottish Law Commission:
- 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 family law.
- A new Surrogacy Register: created to add greater transparency and give children born through surrogacy the opportunity to trace their origins when they are older.
- 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 worse off through surrogacy, while protecting 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 high risk of the exploitation of women and children. Our reforms are designed to make domestic surrogacy arrangements a more attractive option. 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.
It is now for the Government to review and consider the recommendations in our final report.
Read the full report