On 6 June 2019 the Law Commission of England and Wales and the Scottish Law Commission announced that the laws which currently govern surrogacy should be reviewed with a view to improving support to the child, the surrogates and the intended parents. Nicholas Green Chair of the Law Commission stated:
“More and more people are turning to surrogacy to have a child and start their family. We therefore need to make sure that the process is meeting the needs of those involved. However, the laws around surrogacy are outdated and no longer fit for purpose. We think our proposals will create a system that works for the surrogates, the parents and, most importantly, the child.”
Though many are turning to surrogacy as a means of beginning a family, the laws governing surrogacy came into being in the mid-1980s and greatly need updating to provide clarity and protection to all those involved.
Why the current law on surrogacy is unfit for purpose
The present statutory framework, the Human Fertilisation and Embryology Act 2008 results in the intended parents of a child carried by a surrogate requiring to wait until the child has been born to apply to the court for a Parental Order to have their legal parenthood recognised. This process can be lengthy, notwithstanding that the current law permits the surrogate, as the individual legally recognised as the parent of the child at birth, to refuse an application for this order. This process does not reflect the reality of the child’s family life. It also affects the ability of the intended parents to make decisions about the child in their care.
The current regulation of surrogacy is also insufficient and makes it difficult to monitor the process and ensure the wellbeing and safety of the surrogate, the child and the intended parents. The provision of advice on surrogacy agreements and the advertisement for or to be a surrogate is also illegal by virtue of the Surrogacy Arrangements Act 1985 (SAA 1985). This hinders the protection of surrogates and intended parents. In order to be regulated efficiently advice and support should be available, as should information to those considering a surrogacy arrangement.
Furthermore, there is ambiguity around payments which can be lawfully made during the course of surrogacy. The law allows for parents to pay ‘reasonable expenses’ to the surrogate. However no definition of this exists and as such has become difficult to apply in practice, where payments are considered in conjunction with granting a Parental Order. As this will be considered on application to the court after the child is born, and the paramount consideration at this stage is the welfare of the child, often payments which greatly exceed expenses incurred will be allowed. At this stage, the child is likely to be in the care of the intended parents and to refuse the Parental Order is not in the best interests of the child. This has led to payments being made beyond what is permitted by the present statutory framework.
Proposals for reform
Many of the proposals for reform centre on the creation of a new surrogacy process known in the report as the “new pathway”. The aim of this new pathway is to bring greater certainty to the surrogacy process, to provide confidence for both the surrogate and the intended parents and to ensure that the interests of the child are put first by ensuring that the surrogacy process accurately represents their family situation. Alongside this new pathway, other proposals include:
- The creation of a surrogacy regulator to regulate surrogacy organisations and oversee surrogacy agreements pursued through the new pathway;
- The creation of a national register to allow those born as a result of a surrogacy agreement to access information about their origins;
- The removal of a genetic link between the intended parents and the child where this is medically necessary; and
- A lift on the bans in the SAA 1985 which prevent advice on surrogacy agreements (in line with the requirement for independent legal advice in the new pathway), and that which prevents advertisement in order to make information about surrogacy more readily available.
Whilst the Commissions provisionally conclude in the consultation document, that surrogacy organisations remain non-profit, they have not put forward any proposals concerning payments to the surrogate. Instead they wish to gauge the perception of the public and the legal profession. The consultation, therefore, suggests categories of payment that the intended parents should be able to make, in a hope to find consensus on the issue.
The new pathway to parenthood
The Commissions’ proposals for a new pathway for domestic surrogacy to be enacted will likely overcome many of the concerns which make the current law of surrogacy unfit for purpose. As such, the new pathway would allow the intended parents to become legal parents upon the birth of the child. This automatic recognition as the legal parents of the child will be balanced with the rights of the surrogate who would have a short period in which to reject to this. As the current period to register a birth in Scotland is 21 days, an objection period of 14 days has been suggested. This would still give the intended parents a period afterward in which they could be registered on the birth certificate as the legal parent/s of the child.
This proposed new pathway would also involve safeguards including counselling, legal advice, medical assessments and criminal background checks. The aim of counselling and legal advice is to make clear to those entering the agreement the implications of such as well as providing information on the distress a breakdown of an agreement could bring. Medical assessments could assist in protecting both the surrogate and the surrogate born child from medical risks, in the same way that criminal background checks could protect the child from risk of harm. A surrogacy regulator and regulated surrogacy organisations would oversee these arrangements to ensure that high standards are met and maintained.
For surrogacy arrangements which do not qualify for the new regulated process in the new pathway, the Commissions also propose amendment to improve regulation of the existing parental order route.