The current law and the Law Commission’s review of surrogacy laws
It is widely accepted that current legislation in the UK relating to surrogacy arrangements, most of which dates back to the mid-1980s, is in need of fundamental reform. In recognition of this, following consultation about what should be included in its 13th Programme of Reform, it was announced in May 2018 that the Law Commission of England and Wales and the Scottish Law Commission would carry out a two to three year review of the surrogacy laws, with a view to making recommendations for reform.
The law has not kept pace with changes in society and modern family arrangements and reform is needed to protect the interests of intended parents, surrogates and, most importantly, the children who are born as a result of such arrangements. An interim report from the Law Commission and a public consultation are expected this year.
Under our current law, the surrogate is the legal mother of any child born as result of a surrogacy arrangement and she has parental responsibility for the child unless and until the intended parent/s are able to obtain a parental order from the court. Even more bizarrely, if the surrogate is a married woman her husband will be treated as the legal father of the child, unless it is found that he did not consent to the surrogacy arrangement.
Intended parents are not able to enter into binding agreements with surrogates in the UK, setting out the proposed arrangements, most crucially the arrangements for the handover of the child, as such arrangements are not legally recognised here.
They are also prohibited from making financial payments or providing benefits, other than reasonable expenses, to the surrogate.
The surrogate is required to register the birth of the child and the intended parents are required to obtain the surrogate’s consent to a parental order being made, the effect of which is to transfer her legal rights as a parent to them, but her consent cannot be given earlier than six weeks after the baby’s birth.
The intended parents are also required to apply to the court for a parental order within six months of the date of the child’s birth. They must then endure a process, not dissimilar to adoption, where a parental order reporter will investigate their circumstances and prepare a report for the court. The baby is required to be living with the intended parents both at the time of the application for and the making of the parental order. The whole process for obtaining a parental order can take more than 12 months.
Intended parents often fall foul of the legal rules, especially the various time limits and the rule which prohibits payments to surrogates. The court gets around this by prioritising the welfare of the child over the procedural requirements and there are very few reported cases where parental orders have been refused.
Report of the Surrogacy UK Working Group on surrogacy law reform
In December 2018 the Surrogacy UK Working Group on Surrogacy Law Reform published their Second Report, based on research carried out by Dr Kirsty Horsey, Reader in Law at Kent University, in which they examine current UK law regarding surrogacy arrangements undertaken by intended parents both in the UK and by travelling abroad to countries where there are fewer restrictions on surrogacy (for example certain US states, Canada, Greece, Georgia, Kenya, Laos/Thailand, Mexico, Russia and the Ukraine.) In most of these countries, unlike in the UK, commercial surrogacy (involving payment to the surrogate for her services, as opposed to payment only of her reasonable expenses,) is not prohibited. Similarly, related services such as advising on and negotiating surrogacy arrangements for money are illegal here. Surrogacy in these foreign countries has the advantage, to those intended parents who can afford to go abroad, of being underpinned by enforceable surrogacy agreements and foreign parental orders. However, even where a child is born as result of a surrogacy arrangement in a country where surrogacy is recognised and a foreign parental order has been made, the intended parents will still need to obtain a parental order from the UK court, if they wish to live in the UK, because foreign parental/surrogacy orders are not currently recognised in the UK.
The December 2018 Report debunks a number of widely held beliefs and misunderstandings about surrogacy, for example the belief that thousands of intended UK parents are travelling abroad for surrogacy, whereas in reality, the number of foreign surrogacy arrangements made by UK intended parents has remained fairly small but is increasing steadily. Similarly, the Report points out that contrary to the widespread belief that surrogacy is massively on the increase, the total number of parental orders made as a result of surrogacy arrangements is relatively stable. Obviously, this statistic does not take account of unofficial surrogacy arrangements, where parents do not apply for such orders, whether by deliberate choice or because they are unaware of the need to do so.
Recent reform of the law and proposed changes to the law on surrogacy
UK law changed very recently (in January 2019) to allow single people in the UK to apply for parental orders, as well as mixed-sex and same-sex couples who are married, in a civil partnership or in an enduring family relationship.
Consideration should be given to making the following possible changes to the law of surrogacy:
- recognition of foreign surrogacy arrangements/orders;
- intended parents should become the child’s legal parents at or before the birth of the child and they should be able to register the child’s birth;
- intended parents should not have to go through the undignified process of being evaluated as suitable but instead the same child protection framework should apply, as for anyone else who becomes a parent;
- assuming that commercial surrogacy in this country remains illegal, there should be a wider definition of what constitutes allowable expenses payable to surrogates, which will vary according to individual circumstances;
- better collection of surrogacy-related data; and
- more regulation of “approved” surrogacy organisations, so as to give assurance and protection to surrogates, intended parents and their children.