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On 29 March 2023, following a long consultation period, the Law Commission’s report detailing their proposed changes to our surrogacy legislation was released. While it may be some time before any recommendations come into effect, those considering surrogacy as a pathway to parenthood need to be aware of the likely changes on the horizon.
Surrogacy Pathway
The biggest change is the suggested introduction of a new surrogacy pathway for domestic arrangements which will enable intended parents to become the legal parents of their children on birth. One of the main concerns about the current law is that intended parents have to wait until after their child has been born to apply for a parental order, and the application process itself takes many months. In the interim, before a parental order is made, the surrogate, not the intended parents, is the legal parent of the child and may be the only one with parental responsibility.
Recommended steps for the new pathway are as follows:
- matching with a woman willing to act as a surrogate
- medical screening for both the surrogate and the intended parents
- enhanced criminal record checks to be carried out on the surrogate and her spouse, civil partner or partner (if any), the intended parents, and any adult over the age of 18 who lives with the intended parents
- independent legal advice about entering into the surrogacy agreement for the intended parents and the surrogate
- implications counselling to be undertaken by the intended parents and the surrogate
- a pre-conception assessment regarding the welfare of the child to be born including an agreement by a Regulated Surrogacy Organisation (RSO) to admit the surrogacy agreement onto the new pathway
- a Regulated Surrogacy Statement by the intended parents, surrogate and Regulated Surrogacy Organisation
Organisations may apply to become or set up as RSOs and their main role will be to support the parties and assess whether a surrogacy agreement meets the criteria. The Human Fertilisation and Embryology Authority (HFEA) will grant licenses to RSOs who will be regulated by HFEA and will be non-profit making organisations.
Surrogates
Although the intended parents will be regarded as the legal parents on birth, the surrogate will have the right to withdraw her consent to parentage for six weeks after birth. If she exercises that right, she will likely need to initiate parental order proceedings to address parentage.
Surrogates and intended parents will be encouraged to enter into a surrogacy agreement but it is not being suggested that any surrogacy agreement or purported contract is enforceable. If there is a dispute in respect of parentage or the arrangements for the children, the court can be asked to make a decision. The surrogacy agreement will be evidence of the parties’ intentions but will not be determinative.
Unlike the position now, it is being recommended that the court has the power to dispense with the surrogate’s consent to the making of a parental order, if it is determined to be in the child’s best interests to do so. Under the current law, without the surrogate’s consent (unless she cannot be found), a parental order is not possible.
Payments to the surrogate by the intended parents
The proposed reforms provide some clarity regarding payments to surrogates. Currently, rather vaguely, our legislation permits “expenses reasonably incurred”. The reforms are likely to clearly set out a range of permitted payments such as; insurance, safeguarding and screening costs, travel costs, pregnancy related items and modest gifts. Costs which it is being suggested will not be permitted include; general living expenses, compensatory payments and gestational services/payment for carrying the child.
Surrogacy Register
The report recommends the creation of a new Surrogacy Register which will be maintained by the HFEA and will enable children born through surrogacy the opportunity to trace their origins.
International Surrogacy Agreements
The report does not suggest any substantive changes to the international surrogacy pathway and intended parents will still need make an application for a parental order following the birth of a child abroad. The Law Commission has however made recommendations to streamline passport and visa processes for surrogate-born children.
Conclusion
The proposed reforms are undoubtedly a step forward for domestic surrogacy agreements but we are now in the hands of the Government while we wait to see which changes are implemented, and when.
Further information
If you have any questions regarding this blog, please contact Connie Atkinson in our Family team.
About the authors
Connie Atkinson is a Partner in the family team and has experience of dealing with all aspects of private family work relating to both finances and children.
We welcome views and opinions about the issues raised in this blog. Should you require specific advice in relation to personal circumstances, please use the form on the contact page.
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