The Law Commission and Scottish Law Commission recently jointly conducted a public consultation on their provisional proposals to reform the law governing surrogacy which closed on 11 October 2019. After a period of reviewing the responses, a final report and draft bill will be published in 2021.

In this month’s blog, we will outline a selection of the key issues identified in the consultation paper and the suggested reforms.

Issues and Proposals for Reform

1. The legal status of the intended parents at birth and the transferring of legal parenthood after birth

As the law stands, at the time of the child’s birth the surrogate mother is, legally, the mother of that child. There will not be an indication on the birth certificate that the child was born as a result of surrogacy.

Intended parents must therefore apply for a transfer of parenthood, known as a ‘Parental Order’. Intended parents cannot apply for this order until six weeks after the birth of the child and it can take up to six months for a Parental Order to be granted.

This is an archaic and uncertain system where intended parents lack parental responsibility for the child immediately after birth and are thus limited in their ability to make decisions concerning the care of that child.

The Law Commission has proposed a ‘new pathway to legal parenthood’ which, subject to the surrogacy agreement meeting certain requirements and the surrogate having a right to object during a given period, recognises the intended parents as the legal parents of the child from birth.‍

2. The availability of information to surrogate born children concerning how they were conceived

A child born as a result of a surrogacy agreement can currently access information about their origins through three routes:

1. their birth certificate;
2. court records;
3. provisions in the Human Fertilisation Embryology Act (HFEA) 2008.

The Law Commission nonetheless found significant issues with the extent of the availability and accessibility of information to those born as a result of a surrogacy agreement. Namely:

• they are unable to access their original birth certificate;
• they do not have access to statements filed by the intended parents during the Parental Order proceedings which often set out a detailed history of the surrogacy journey; and
• the disclosure provisions in HFEA 2008 cannot be used to identify the surrogate.

Notably, the Law Commission have suggested the development of a national surrogacy register which would hold information about the intended parents, the surrogate mother and any sperm or egg donors.

3. The lack of safeguarding for participants in a surrogacy arrangement

Under the ‘new pathway’ outlined above, the interests of all the parties involved would be safeguarded, pre-conception, through the following:

• Health screening, ensuring that pregnancy and childbirth do not pose any special risks to the surrogate’s health;
• Counselling for all parties to ensure that they fully understand the nature of the agreement they are entering into and to facilitate the development of a strong relationship between the surrogate and intended parents;
• A requirement for independent legal advice for both the surrogate and intended parents, which will be crucial should the proposals for the new pathway come into force; and
• Mandatory enhanced criminal record checks for all parties to the surrogacy agreement and the partner of the surrogate.

4. International surrogacy arrangements risk a child being left for long periods in a foreign country whilst waiting for a passport or travel documentation into the UK

A child born of an international surrogacy arrangement may be recognised as the legal child of the intended parents in the country of birth (e.g. India) and may be able to obtain a British passport. However, the UK will not recognise the intended parents as legal parents until a Parental Order is granted, which can take up to six months (or longer), delaying a child from obtaining their British passport.

While it is suggested that the court scrutiny of international arrangements remains important, the Law Commission have proposed the following reforms to make it quicker to get the child back to the UK:

• Operational reforms
• Unified guidance on nationality and immigration issues
• Provisions for the recognition of legal parenthood across borders

5. The law on payments is unclear and difficult to apply in practice

Currently, a surrogate should not be paid more than “reasonable expenses” by the intended parents, unless permitted by the court. The Law Commission invited consultees’ views on potential categories of payment that the intended parents should be able to pay to the surrogate. The suggested categories of payment to a surrogate were as follows:

• Gifts
• Costs associated with a surrogate pregnancy
• Additional costs of pregnancy
• Essential costs of pregnancy
• Loss of earnings
• Compensation for pain and inconvenience
• Medical complications and death of surrogate
• For being a surrogate, either freely negotiated between the parties, or subject to a cap set by the regulator, as a flat fee.

As it stands, it is also a criminal offence for third parties (such as a lawyer) to negotiate the terms of a surrogacy agreement for any payment. It has therefore been suggested that there should be a regulator for surrogacy and the creation of regulated surrogacy organisations, who would supervise surrogacy agreements.

6. One requirement for a parental order to be made is that one of the intended parents must provide their eggs or sperm for the conception of the child

The requirement for a genetic link provides important safeguards, for example by providing evidence that the intended parents planned to bring about the conception of the child. However, it has been provisionally proposed by the Law Commission that the requirement for a genetic link should be removed in cases of medical necessity, when the intended parents are medically unable to contribute sperm or eggs. Notably, they have suggested that the requirement for a genetic link should be maintained for international surrogacy arrangements (as above), as its removal in international cases would bring an undesirable risk of surrogacy being abused for the purposes of child-trafficking.

Further Information

Look out for further updates in this area following the publishing of the final report in 2021.

If you would like to read the full consultation paper, it can be found here.

If you would like to discuss surrogacy in more detail, please do not hesitate to contact one of our team at mail@burgessmee.com or on 0203 824 9950.

Written by: Georgina Swinglehurst and Pollyanna Furness

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