Last week The Law Commission of England and Wales published its joint report with the Scottish Law Commission, outlining recommendations for a robust new system to govern surrogacy. Here, Family practitioner Claire Garton discusses the current law and the recommendations from the recent report.

What is surrogacy?
Surrogacy is the practice of third-party reproduction whereby a woman (“the surrogate”) consents to becoming pregnant with a child that may, or may not, be genetically related to her, carrying the child and giving birth to the child for another individual or couple (“the intended parents”). At least one of the intended parties must be genetically related to the child.

There are two forms of surrogacy: traditional and gestational. Traditional surrogacy is where the surrogate is genetically related to the baby and conceives through artificial insemination (IUI or IVF). Gestational surrogacy (aka ‘host’ or ‘full’ surrogacy) is where the surrogate is not genetically related to the baby, IVF is used with either the intended mother’s eggs or donor eggs.

Since the development of IVF in the 1970s surrogacy has also developed and evolved and become a possible way for people to have a child if they are unable to conceive, carry or deliver a baby.

The current law and problems with it
The Surrogacy Arrangements Act 1985 and the Human Fertilisation and Embryology Act 2008 constitute the majority of the current legislation on surrogacy in the UK. There are various problems with the existing law on surrogacy, with concerns ranging from the legal allocation of parental status to safeguards for all parties, including the child.

Perhaps the most significant point under the current law is that the legal mother of the child born from a surrogate will be the surrogate, while the father or second parent will usually be either the surrogate’s spouse or civil partner if she has one. So, at the time of birth, often neither of the intended parents are the legal parents of the child. The legal parental status must be transferred to the intended parents by a parental order which is granted by the court. Such an order also transfers parental responsibility, which is important when making decisions for the child, such as a decision in relation to medical treatment. The parental order can take six months to a year to obtain after the birth of the child, and it has been said, quite rightly, that this does not reflect the best interests of the child.

There are four other main problems identified with the current law:

1. Insufficient regulation – surrogacy agreements are unenforceable and there are a lack of safeguards for participants in a surrogacy agreement;
2. There is no clear route or framework to access information for people born via surrogacy;
3. Payments – the current law on payments which the intended parents are able to make to the surrogate lacks clarity. There is no definition of what payments may be paid to the surrogate as “expenses reasonably incurred”, which has resulted in concerns surrogates may in some cases receive payments beyond their expenses;
4. International surrogacy – the current law operates to encourage intended parents to undertake an international surrogacy arrangement, in a country that provides them with greater certainty as to the outcome of the arrangement. With international arrangements however, there is higher risk of exploitation of women as surrogates. The child can also face a long wait in a foreign country for documentation to enter the UK.

The current law has been deemed by many as outdated, not reflecting current attitudes, practices and lifestyles. For a number of years the Law Commission has considered the need for reform, even back in 2019 it was commented: “We think that there is a strong case for reform to the law. We believe that the current law is out of date, unclear and not fit for purpose. We think that the law needs to be updated to make it workable and to bring it up to date, and ensure that it protects the welfare of all the participants to the arrangement including, most importantly, the welfare of the child.”

Proposed new law
Last week, on the 29th March 2023, the Law Commission of England and Wales and the Scottish Law Commission published a joint final report and draft legislation for Government, recommending a review and update of surrogacy laws .

The key recommendations for reform as set out in the report are :

1. A “new pathway” to legal parenthood: a new regulatory route for domestic surrogacy arrangements, under which intended parents would become parents of the child from birth, rather than waiting months to obtain a parental order. This would be 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.
2. A regulatory route overseen by non-profit surrogacy organisations: individual surrogacy agreements under the new pathway will be overseen and supported by non-profit Regulated Surrogacy Organisations (RSOs). RSOs themselves will be regulated by the Human Fertilisation and Embryology Authority (HFEA).
3. Reforms to parental orders: despite the introduction of the new pathway, some intended parents will still need to obtain a parental order through the courts in order to become legal parents. There are recommendations for reform to parental orders, to include 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 areas of family law.
4. A new Surrogacy Register: created to give children born through surrogacy the opportunity to trace their origins when they are older, through a framework designed with surrogacy in mind.
5. New rules on payments: the reforms provide clarity over which payments 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. These recommendations to payment rules ensure that the surrogate is not left either better or worse off through surrogacy, which protects against the risk of exploitation.
6. Commercial surrogacy prohibited: the recommendations 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.
7. International surrogacy agreements: many couples opt for agreements abroad, sometimes in countries where there is a particular risk of exploitation of women and children. The reforms are designed to encourage intended parents who want to use surrogacy to make domestic surrogacy arrangements instead. However, for those who do opt for international surrogacy arrangements, there are recommended legal and practical measures to safeguard the welfare of those children, for example through assisting them in acquiring UK nationality, and recording relevant information on the Surrogacy Register.

It is envisaged that the recommendations, if implemented, will modernise the law on surrogacy that will work in the best interests of all involved in a surrogacy arrangement. Professor Nick Hopkins, one of the five Law Commissioners, commented ‘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 has also drafted legislation to supplement the final report, which will also be reviewed and considered by Government. The ‘Surrogacy Bill’ has six main parts which reflect the recommendations for reform. The parts are:
Part 1 – parenthood
Part 2 – parental responsibility
Part 3 – payments in relation to surrogacy
Part 4 – regulation of surrogacy-related activity
Part 5 – registers and information
Part 6 – miscellaneous which includes employment rights and maternity allowance

What happens now?
It is now for Government to scrutinise the recommendations in considering the final report and draft legislation. The Responsible Minister will produce an interim response within the next six months, followed by a full response within the next year.

It will be an interesting journey and process, which I for one will be eagerly following!

Claire Garton