UK Surrogacy Law Reform
UK surrogacy law is in the news because the Law Commission of England and Wales and the Scottish Law Commission have finally published their long-awaited report on proposed surrogacy law reform. If the proposals are made into law this will affect UK surrogacy and international surrogacy.
From the outset, family law solicitors warn that the report contains proposals and there are no guarantees that all the proposals will make it into law or the timescale for any new surrogacy law to be brought into force. With this in mind, family lawyers do not anticipate that those looking to become parents through surrogacy will delay their surrogacy plans to see if the report proposals become law.
In this article, our surrogacy solicitors look at the key proposals in the Law Commission report and assess how that may affect surrogacy arrangements.
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The surrogacy reform report
The surrogacy reform report was commissioned in 2017 and was originally scheduled to report in 2021. The report was published on 29 March 2023 following extensive consultation on the frankly archaic UK surrogacy laws. It isn’t surprising that the current UK surrogacy law is archaic as it was introduced over 30 years ago and there have been major scientific advances over that period as well as a growth in international surrogacy with all the consequent immigration law issues and changes in thoughts on best practices.
The Law Commission says that their proposals have at their heart the best interests of the child as well as protecting birth parents and surrogate parents to be.
A new surrogacy pathway
At present, a surrogate parent is only legally recognised as the baby’s parent when a parental order is made. The Law Commission’s report proposes a new surrogacy pathway so that a surrogate parent is recognised as a baby’s parent from birth. There are 2 advantages to this, namely, bonding between the surrogate parent and baby and the surrogate parent can be named on the child’s original birth certificate. Currently, many parents achieving parenthood through surrogacy arrangements feel immense anxiety between the date of the child’s birth and the making of the parental order. The reforms go some way to relieve that understandable anxiety.
Regulated surrogacy organisations
If implemented, the new surrogacy pathway will be overseen by regulated surrogacy organisations that the report recommends are non-profit-making surrogacy organisations. The role of the regulated surrogacy organisations will be to ensure that surrogacy criteria are met, such as:
- The intended surrogate parents to be must be at least 18 years old
- The surrogate mother must be at least 21 years old
- At least one of the parents of the child must have a genetic link to the baby
- If there are 2 parents to be then they must either be married or in a civil partnership or in what is termed an enduring family relationship
- One or more of the intended parents, and the surrogate, must pass a connection test with the UK – this means that they must either be domiciled or habitually resident in the UK ( domicile and habitual residence are complex legal topics and where families have links to other countries family law solicitors and immigration lawyers can advise on whether the connection test is likely to be met through domicile or habitual residence)
In addition to the above legal points there are some personal steps and checks that are proposed for the surrogate mother and the intended parents to be:
- There must be a pre-conception assessment of the welfare of the surrogate baby
- Medical checks must be carried out on the surrogate and on the parents to be
- Enhanced criminal records checks must be carried out on the surrogate mother and her husband or civil partner or partner and also on the parents to be
- The surrogate mother and the intended parents must receive independent legal advice and also counselling on the implications of surrogacy
- The surrogate mother ( and her partner where relevant) and the parents to be must enter into a surrogacy agreement. The agreement must be authorised or signed off by the regulated surrogacy organisation
If all these steps are followed then the Law Commission recommends that the parents to be are recognised as the baby’s legal parents at birth. This means they can be named on the child’s first birth certificate. In addition, the surrogate mother’s consent to the parents to be being recognised as the child’s legal parents will not be necessary provided all the above safeguards have been followed.
The surrogacy law reforms would ease a lot of the pressure on intended parents as most currently report feeling in limbo between the date of the baby’s birth and the making of the parental order, almost fearing to bond with the baby in case something goes wrong with securing the parental order despite the reassurances given to them by their surrogacy solicitor.
Surrogate mother’s right to withdraw consent on the surrogacy pathway
Under the Law Commission proposals, a surrogate mother has the right to withdraw consent from the intended parents being recognised as the child’s parents on the birth certificate. Consent could be withdrawn from the date the surrogacy agreement is signed until 6 weeks after the baby’s birth.
If the surrogate’s consent is withdrawn before the birth of the baby, then the parents to be can't be recognised as legal parents at birth. Instead, they will not have legal rights until the family court decides whether or not to make a parental order in their favour.
If consent is withdrawn after the baby’s birth but within 6 weeks of delivery the intended parents will retain their status as legal parents unless the surrogate challenges this by applying to the court for a parental order.
Surrogacy and parental consent
At present, surrogate consent is a crucial component of the parental order application process. Even if the new surrogacy pathway isn’t used, the Law Commission recommends that the family court is given the power to dispense with the need for the surrogate’s consent in circumstances where a parental order is in the best interests of the baby.
Financial payments to surrogates
A tricky area is payments to surrogates as no one likes to see surrogacy as a commercial arrangement but surrogates need to be properly compensated.
The Law Commission report suggests that the parents to be must be placed under an obligation to sign a statutory declaration setting out payments made in connection with the surrogacy arrangement. The statutory declaration would need to be signed within 6 to 12 weeks of the baby’s birth.
Permitted surrogacy payments could include:
- Medical costs
- Travel costs
- Wellbeing costs
- Dietary requirements
- Pregnancy-related goods
- Domestic support
- Post-birth recuperative holiday
It is anticipated that modest gifts will be allowed as well as well-being expenses such as pregnancy yoga sessions or massages.
However, the report recommends that payment of the surrogate’s general living expenses, payment for gestational services, or compensation payments will be prohibited. This will be disappointing to some who believe that payment of living expenses or services is more than reasonable for the gift of a baby.
Alternatives to the new surrogacy pathway
If the surrogate or parents-to-be don’t meet the pathway criteria then the Law Commission has recommended that the current law is followed, namely, the parents-to-be don’t get automatic legal rights on the baby’s birth and have to apply to the court for a parental order.
The alternative route would need to be followed in cases of international surrogacy as the surrogate mother would not be domiciled in the UK or habitually resident in the UK.
International surrogacy and law reform
Disappointingly, from the point of view of immigration and family law solicitors as well as parents-to-be, the Law Commission’s proposals do not recommend changes to the law on international surrogacy. That means intended parents would still need to apply for a parental order on return to the UK as without a parental order from the family court they would not be legally recognised as UK parents. This lack of reform could continue the frustrations and delays some intended parents experience when trying to get UK entry clearance for their baby.
The surrogacy register
The Law Commission is suggesting the introduction of a surrogacy register to record surrogacy arrangements, including pathway, non-pathway and international surrogacies. The register would enable adult surrogate children to have access to information about their surrogacy birth and genetics.
Next steps in your surrogacy journey
If you are exploring surrogacy as a route to parenthood our family lawyers can advise you on the process. If you are considering international surrogacy our specialist immigration lawyers can provide clear legal advice on the routes to UK entry clearance for your baby and what to expect in terms of procedures and Home Office timescales.
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