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Surrogacy: the current law and proposals for reform

Date:22 APR 2022
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The number of people choosing surrogacy as a way to parenthood is increasing. Whilst it is difficult to know exactly how many surrogacy cases there have been in recent years, the number of applications for parental orders, which is the order required to recognise intended parents as a child’s legal parents, is growing. With this growth have come calls for reform to surrogacy laws, which many say are outdated and do not reflect current attitudes and lifestyles.

The current law

The law on surrogacy in the UK has remained largely the same for over 30 years. The Surrogacy Arrangements Act 1985 constitutes the majority of the legislation on surrogacy in the UK, albeit with the addition of the Human Fertilisation and Embryology Act in 2008. However, there have been significant medical and scientific advances and a change in public perception. The Law Commission of England and Wales has acknowledged that there are significant problems with the current law and the fact that there is insufficient regulation which makes it difficult to monitor the surrogacy process and to ensure that standards throughout the process are kept high. The lack of clarity, particularly regarding surrogacy payments, makes the laws difficult to apply in practice.

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Transfer of parenthood

A major issue with the current legislation is how it handles the transference of parenthood. Under the Human Fertilisation and Embryology Act 2008, the surrogate who carries the child is treated as the mother of the child. Therefore, the intended parents cannot be considered as the parents of the surrogate child straight away. At the child’s birth, the surrogate will be recognised as the child’s mother, and her name will be on the birth certificate; if she is married, her spouse will be listed as the second parent, unless they do not give their permission.

For the intended parents, that means waiting until the child has been born and then applying to court for a parental order to become the child’s legal parents. It can take many months to obtain a parental order, and during this time both the child and the intended parents are left in limbo. Although the child can and usually will live with the intended parents, they are, as a matter of law, unable to make decisions about the child in their care and are left unrecognised as the child’s true parents.

There can be further issues with the delay to the recognition of parenthood. Those could include if the surrogate changes her mind and seeks to remain the child’s legal parent or if the intended parents separate before or during the parental order proceedings.

International surrogacy can be even more complicated. Under UK law, the birth parents of a surrogate child born abroad are considered their legal parents, even if the local birth certificate bears the intended parents’ names – this means the intended parents must also obtain a parental order in the UK, which is yet another additional burden on the intended parents and leaves them in a precarious situation until the parental order is made.

Many intended parents are also often unaware that the application for a parental order must be made within six months of the child’s birth, although there have been a number of cases where the time limit has been extended. In the recent case of Re X, Y and Z (Children-Parental orders- time limit) [2022] EWHC 198 (Fam) the applications for parental orders were made well outside the statutory six month time-limit but Mrs Justice Knowles exercised her discretion to make the orders on the basis that it was plainly in the children's best interests and parental orders would give permanence and security to their care arrangements.

Reasonable expenses

Another issue of concern is that, while surrogacy is legal in the UK, commercial surrogacy is illegal; the only payments allowed to be made to a surrogate are 'reasonable expenses', i.e. compensation for any expenses that may arise as a direct result of the pregnancy (medical bills, compensation for loss of earnings etc.). Advertising surrogacy is also illegal unless done on behalf of a non-profit organisation.

The Law Commission has recognised that there is a lack of clarity as to what constitutes 'reasonable expenses', given that the term is not currently defined in the legislation. Due to the lack of clear guidance, the courts have retrospectively permitted payments to surrogates beyond reasonable expenses when they consider it is in the child’s best interests to do so, but is not always clear what will and will not be allowed.

Potential reform

From beginning to end, the entire process of surrogacy in the UK is uncertain for both the intended parents, who may have to wait for a considerable period of time and jump through various legal hoops to finally be recognised as their children’s legal parents, and for the surrogate, who, should the intended parents fail to obtain a parental order within six months of the baby’s birth, could end up with legal responsibility for a child they had no intention of keeping.

Some of the reforms that the Law Commission is considering in order to address these problems include:

  • Creating a new surrogacy pathway that will allow, in many cases, the intended parents to be the legal parents of the child from the moment of birth.
  • Introducing specific regulation for surrogacy arrangements and safeguards such as counselling and independent legal advice, in order to reduce the risk of arrangements breaking down.
  • Allowing international surrogacy arrangements to be recognised here, on a country-by-country basis.
  • Recommendations to improve the existing parental order regime, which include: removal of the 6-month statutory deadline (which has already been eroded by case law), removal of the surrogate’s absolute veto to the grant of a parental order (enabling the best interests of the child to prevail) and introduction of an additional alternative eligibility requirement of habitual residence to assist those unable to meet the domicile criteria.
  • Unified guidance on nationality and immigration issues and provision for recognition of legal parenthood across borders in international surrogacy cases (subject to conditions) to help intended parents return to the UK with their surrogate born child.
  • Guidance on the types of payment that might be appropriate going forwards and whether such payments should be authorised pre-conception to ensure that they are fair to both the surrogate and the intended parents and do not go beyond what is ‘reasonable’.

The Law Commission is currently in the process of drafting finalised recommendations for reform and a draft Bill of proposed changes, which is due to be completed in Autumn 2022.

In the meantime, given the complexities and potential pitfalls surrounding the surrogacy process and the procedure for applying for a parental order, it is crucial to obtain advice at an early stage to avoid issues arising later on. We are able to advise both intended parents and surrogates on the procedures involved, as well as acting on their behalf when applying for a parental order.

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