Couples could become a surrogate child’s legal parents at birth under proposed major reforms to the current decades-old law.
The surrogate would be able to withdraw her consent until six weeks after the baby’s birth but by that stage she would have to apply for a parental order to gain legal parental status instead of the intended parents, the Government-commissioned review states.
The suggested reforms, published by the Law Commission of England and Wales and the Scottish Law Commission, come amid rising demand in an area where the existing laws are seen to fall short in providing the right level of protection for everyone involved.
We need a more modern set of laws that work in the best interests of the child, surrogate, and intended parents— Professor Nick Hopkins, Law Commission
Surrogacy – where a woman becomes pregnant and gives birth to a child for another family – is currently governed by “outdated” laws going back in part to the 1980s.
Professor Nick Hopkins, family law commissioner at the Law Commission, said: “The use of surrogacy to form a family has increased in recent years, but our decades-old laws are outdated and not fit for purpose.
“Under current law, surrogacy agreements are often a complex and stressful process for all involved.
“We need a more modern set of laws that work in the best interests of the child, surrogate, and intended parents. Our reforms will ensure that surrogacy agreements are well-regulated, with support and security built into the system from the very beginning.
“By introducing a new regulatory route with greater legal certainty, transparency and safeguards against exploitation, we can ensure that we have an effective regime for surrogacy agreements that places the interests of the child at their heart.”
The Law Commission argues that the law as it stands does not work in the best interests of the children born though surrogacy, women who become surrogates, or intended parents.
Current law means that in most cases those raising the baby have no legally recognised relationship with the child until the grant of a parental order, with the surrogate and her spouse or civil partner considered the legal parents of the child until that point.
This means the intended parents cannot make any decisions in relation to the child, including medical treatment.
Its suggested “new pathway” would be overseen by new non-profit-making bodies called Regulated Surrogacy Organisations.
These bodies, regulated by the Human Fertilisation and Embryology Authority (HFEA) would provide support to the surrogate and the intended parents.
To be eligible the commission said the surrogate must be at least 21 years old, the intended parents must be at least 18, at least one of the intended parents must have a genetic link to the child and where there are two intended parents they should be married, in a civil partnership, or living as partners “in an enduring family relationship”.
The commission also criticised the current law around payments to surrogates as lacking clarity and being difficult to enforce, and proposes bringing in clear categories of payment that the intended parents will be allowed to make to the surrogate.
To avoid what it describes as “commercial surrogacy” which it said runs the risk of a woman being exploited, it recommends while payments for things like insurance and medical costs be allowed, general living expenses and compensatory payments should not.
The potential reforms also include the setup of a Surrogacy Register which would hold information about the surrogate and the intended parents.
This would address the current inadequate framework surrogate children have to access information about their origins, the commission said.
The commission states that one of the main aims of recommendations for reform is to encourage intended parents in the UK to enter into surrogacy arrangements in the UK, rather than overseas.
International surrogacy could account for up to half of surrogacy arrangements for parents from England, Wales and Scotland, the commission said, as it warned that the risks of exploitation can be “considerably higher than in domestic arrangements”.
If a child is born through an international arrangement, the intended parents should still have to apply for a parental order, the proposals state.
The commission also recommended that intended parents should be entitled to improved employment rights including access to a benefit equivalent to maternity allowance and being able to take time off work to attend antenatal appointments.
The commission described its proposed reforms as a way to “provide a robust new system to govern surrogacy, which will work better for children, surrogates and intended parents”.
But it acknowledged that surrogacy “is a contentious area, where people hold a wide range of strongly held views, and consensus is not always possible to achieve”.
Professor Gillian Black, commissioner at the Scottish Law Commission, insisted the child’s welfare “is paramount in all of our reforms” and said the so-called new pathway would ensure “critical screening and safeguarding measures for the surrogate and intended parents will take place before conception”.
