The latest reforms to surrogacy law

Reforms to the law surrounding surrogacy have been published by the Law Commission of England and Wales, and the Scottish Law Commission.

Some of the key recommendations in the report include:

• A creation of a new pathway, without the need for court intervention, which has eligibility conditions and safeguards, to parenthood to allow the intended parents to be the legal parents from birth
• The law surrounding payments made to the surrogate becoming more transparent
• The creation of regulated bodies to oversee agreements and provide important support to both the surrogate and parents
• Creation of a surrogacy register to allow children to access information about their origin
• Improved employment rights for parents so that all parents with newborn children are treated the same

The new pathway

Most prominently in the report is the recommendation for a new pathway to allow intended parents to become legal parents at birth without the need for court intervention, which is not the case under the current law. The new pathway’s eligibility conditions, such as the surrogate being at least 21 years old and one of the intended parents having a genetic link to the child, will mean that the pathway can only apply to certain arrangements. One of the eligibility conditions is that where there are two intended parents, they need to either be married, in a civil partnership or living as partners in an enduring family relationship. This will mean surrogacy arrangements where the intended parents are no longer together, or wish to co-parent not in an enduring family relationship, would not qualify for the new pathway.

Another aspect of the new pathway is that it will be subject to certain safeguards, such as there being an agreement between the surrogate and intended parents, the contents of which they have all sought independent legal advice upon. Both the surrogate, any spouse, civil partner or partner they have and any adult over the age of 18 living with the intended parents will be subject to criminal record checks. It is recommended that there also be the need for agreement by a regulated surrogacy organisation to admit the surrogacy agreement.

Parental orders

The report recommends that parental orders be changed so that they are only a mechanism that is used in certain surrogacy arrangements. This will be for arrangements where: i) they do not meet the new pathway eligibility or safeguarding requirements; ii) the surrogate has withdrawn their consent either prior to the child’s birth or within six weeks after the child’s birth; iii) arrangements are made off the new pathway; and iv) where there are international surrogacy arrangements.

If any of the above apply to the surrogacy arrangement, then those wishing to enter into a surrogacy arrangement will need to rely on the parental order process, which will largely remain the same. Currently, parents who do not automatically have parental responsibility need to apply to court for an order. In surrogacy arrangements, this is usually the intended parents as the law only automatically grants parental responsibility to birth mothers, their civil partner or spouse if they are married, or any individual named on the child’s birth certificate. Around 400 parental orders are made each year and you can find out more about the current law surrounding parental orders here.

Finally, the report includes draft legislation which at its essence strives to provide more intrinsic protection for the child, surrogate and parents of the child. At the outset the draft legislation defines a surrogacy agreement as one in which a woman and an individual, or two individuals enter into, with a view that any child shall be the child of the intended parents and not the child of the surrogate. This would override the current, narrow and slightly counterintuitive definition of surrogacy arrangements contained within The Surrogacy Arrangements Act 1985 (that being that the arrangement is made by a woman before they carry a child, and with a view of the child being ‘handed over’ to another person or person).

Following publication of the report, the next step is for the government to respond. Whilst the over 600 page report has undertaken a detailed and well thought out analysis of potential reforms to the law surrounding surrogacy arrangements, the government will need to consider whether or not those should be incorporated into law. Even if the proposals are incorporated into law, that process can be lengthy. Until that point, the current law surrounding surrogacy arrangements will remain in force and there is more information about that in our previous blogs at the links below:

• LGBTQ+ History Month: A children law perspective
• National Surrogacy Week 2022: common misconceptions and FAQs