A summary on the Surrogacy Law Reforms change

Following on from last week’s National Surrogacy Week, we take a look back in the highly anticipated Surrogacy report.

In March 2023 we eagerly received the Surrogacy Report from the Law Commission. This report set out a number of proposals for reform to the law around surrogacy.

The reforms were highly anticipated particularly as surrogacy has been stuck in time for the last 30 years.  Families and their dynamics have changed and although the Courts are trying to assist as many intended parents as possible, the law simply needed to catch up.

Pre-Law Reform

The laws around surrogacy were initially introduced under the Surrogacy Agreements Act 1985. It was not until 2019 that a single person was allowed to apply for a Parental Order. Before this, only couples who were in an enduring relationship were entitled to make such applications. The lack of change on this point shows how differently people view and consider families now. The Court has for a period of time found creative solutions to assist intended parents with the complications faced throughout the surrogacy process. However, leaving such issues to the Court means that there is usually a period of time where children are left in a state of legal limbo and this can cause considerable stress to not only intended parents but to surrogates as well. Currently the law is as follows: –

• The surrogate is the legal parent of the child at birth. This means that intended parents have to apply for parentage by obtaining a Parental Order through the Courts. This process can take several months and can only be initiated after birth.

• Currently in England and Wales surrogacy agreements are not enforceable.  This means that a surrogate can at any point change her mind and not hand over a child to the intended parent even if she has no biological connection to the child.

• Currently the law is quite clear that there cannot be commercial surrogacy arrangements in place and there are considerable restrictions on what reasonable expenses are to be offered to surrogates.  The issue with this is that there is a lot of ambiguity over what would be deemed reasonable expenses, and this leaves surrogates in uncertain territory with what they can and cannot claim back legally. This also causes additional stress and worry for the intended parents.

• When a surrogate is abroad this can cause immigration issues and difficulties because of the legal parentage attached to the child that has just been born again creating a situation where a child is left in limbo and could be left stateless. This means that the intended parents might have an incredibly difficult time arranging a passport for the child in order to travel home.

What does the Report say?

The Report has set out some proposed changes aimed to address the issues we face under the current legislation.

• Parenthood – there will be a new pathway to parenthood which will include a number of conditions to be met in order for the intended parent(s) to become legal parents at the time of their child’s birth without the need for Court intervention.

• There is also a suggestion that safeguarding checks and requirements within the surrogacy agreement are clear. Checks that need to be undertaken would include medical history, criminal record history, requirement of independent legal advice, counselling, welfare assessment and a statement signed off by a non-profit regulated surrogacy organisation. This will mean that parental orders will only be required in certain circumstances. This may be if one of the new pathway criteria or safeguarding checks are not met. The second may be if the surrogate withdraws her consent whilst pregnant or up to six weeks after giving birth to the child. There will be clarity on expenses and payments to the surrogate and categories will be used to reduce ambiguity.

• There will also be a register holding information about the surrogacy arrangements. This register will include details about the intended parents, any details of the sperm or egg donor and the surrogate. This information could potentially be provided to a child if they wish to have more information about their creation and family.

The Report also made some suggestions of how to improve the process for those intended parents who decide international surrogacy would be best for them. It is quite clear that there are important areas for change. If these changes are implemented there will be significant improvement. However, it may be that more needs to be done.

The Law Commission report only makes proposals as to how the law should be reformed but it does not yet change the law. It is therefore important that the government seriously considers the recommendations made. However, the proposed reforms put forward by the Law Commission will likely be more welcomed by people who are fortunate enough to find a surrogate through a regulated surrogacy organisation. Many people still have an informal surrogate arrangement which can be fraught with potential difficulties for all concerned.

The Report has a number of welcomed proposals that will greatly assist many intended parents and surrogates. Hopefully, the government will take on a number of the proposals and will consider the wider issue of surrogacy arrangements carried out domestically and through family members and friends which are perhaps not as formal as those carried out internationally.

How can we help?

Pinney Talfourd support both intended parents and surrogates in terms of the legal process. If you are seeking surrogacy legal advice, please feel free to contact our Family team lawyers, Louise Eady or Remyhs Baker.