Surrogacy law requires new reforms to meet the increased demand in this area of law, which have previously been considered outdated.
The Law Commission of England and Wales and the Scottish Law Commission have published new reforms to help improve the previous surrogacy laws. Dating back to the 1980’s, the existing laws often fall short in providing all the parties involved the right level of protection.
The Law Commission’s report and draft legislation introduce a new regulatory regime that offers more clarity, support and safeguards– for the child, surrogate, and parents who will raise the child (“the intended parents”).
The reforms create a ‘new pathway’ and system governing surrogacy agreements, which will come into force where scrutiny of arrangements starts pre-conception. This will allow for rigorous pre-conception screening and safeguarding.
If you are eligible by these conditions being met, it allows the intended parents to become the legal parents of the child from birth, subject to the surrogate’s right to withdraw her consent. The new system aims to improve the current process, which can be considered lengthy and complex. It aims to shorten the delays from waiting for the birth of the child and the wait for the intended parents to become the legal parents.
The reforms provide:
• A new pathway to legal parenthood: The intended parents would become parents of the child from birth, rather than wait for months to obtain a parental order, subject to the surrogate having the right to withdraw consent. The new pathway incorporates screening and safeguards, including medical and criminal records checks, independent legal advice, and counselling.
• A regulatory route overseen by non-profit surrogacy organisations: Surrogacy agreements will be overseen and supported by non-profit Regulated Surrogacy Organisations (RSOs).
• Reforms to parental orders: Some intended parents will still need to obtain a parental order through the courts in order to become legal parents. The Law Commission’s recommend reform to parental orders includes allowing the court to make a parental order where the surrogate does not consent, provided that the child’s welfare requires this. This would bring surrogacy law into line with other family laws.
• A new Surrogacy Register: This adds greater transparency and gives children born through surrogacy the opportunity to trace their origins when they are older.
• New rules on payments: Protecting surrogates by ensuring they are not left worse off through surrogacy. This will provide clarity over which payments the intended parents are permitted to make to the surrogate. Permitted payments include medical and wellbeing costs, those to recoup lost earnings, pregnancy support, and travel. Prohibited payments include those made for carrying the child, compensatory payments, and living expenses such as rent.
• Commercial surrogacy prohibited: Ensure that surrogacy continues to operate on an altruistic, rather than a commercial basis. Surrogacy arrangements will also remain unenforceable: the surrogate could not be forced to give the child to the intended parents because of an enforceable surrogacy contract, as seen under some “for profit” systems.
• International surrogacy agreements: The reforms are designed to make domestic surrogacy arrangements a more attractive option. However, for those who do opt for international surrogacy arrangements, the Law Commissions also recommend legal and practical measures to safeguard the welfare of those children, for example by assisting them in acquiring UK nationality and recording relevant information on the Surrogacy Register.