Posted: 29/03/2023
While the number of children born through surrogacy is just a small fraction of the total number of births which take place in the UK each year, the impact the current legislation has on all those involved in a surrogacy arrangement is hugely significant and serves to increase the pressures on the surrogate and intended parents. With this in mind, the surrogacy community was delighted to receive the news in late 2017 that the Law Commission of England and Wales and the Scottish Law Commission would be including a project on surrogacy in its thirteenth programme of law reform.
It was anticipated that the Law Commission’s final report would be published in 2021, however, given the extent of the responses to its consultation paper, the publication date was delayed and pushed back on a number of occasions.
The final report was published today (Wednesday 29 March 2023), and the Law Commission’s proposals are extensive. Their report addresses how the current laws, many of which were put in place over 30 years ago, are no longer fit for purpose, and proposes a new system which will offer greater protection and certainty to intended parents, surrogates and ultimately the resulting child. The proposals have at their heart the best interests of the child.
While the report may not go as far as some hoped, the opportunity for comprehensive reform in this area should not be ignored, in contrast to the piecemeal approach through case law which we have experienced over the past few decades.
Our specialist surrogacy team have considered the Law Commission’s final report and prepared answers on what are anticipated to be frequently asked questions on the proposals.
The key proposal within the Law Commission’s report is the development of a new pathway to parenthood. If followed, this will enable the intended parents to be recognised as the child’s legal parents from birth and to be named on the first birth certificate. Currently, intended parents face a potentially significant delay before becoming legal parents, despite the fact that the child will be living with them from birth.
The new pathway will be overseen by the new non-profit-making surrogacy organisations, who will be called ‘regulated surrogacy organisations’. These organisations will ensure that various criteria are met:
Further to the above, the new pathway requires the intended parents and surrogate to comply with the following steps:
Provided these steps are followed, the intended parents will be recognised as the legal parents at birth and can be named on the child’s first birth certificate.
The surrogate will not formally give her consent to the intended parents being recognised as the legal parents, provided the team meet all the requirements.
The Law Commission have proposed that there is a period of time during which the surrogate can withdraw her consent, and that this can take place anytime from the start of the surrogacy arrangement, and up until six weeks has passed after the birth of the child.
If a surrogate does withdraw her consent, the impact will depend on precisely when her consent is withdrawn.
If the surrogate withdraws her consent following conception, but before the birth, the surrogate will be recognised as the legal parent when the child is born, and the intended parents will need to apply to court for a parental order to obtain legal parenthood.
If the surrogate withdraws her consent following the birth, and within the six-week limbo period, then the intended parents will remain recognised as the legal parents, and the surrogate will need to apply to court for a parental order should she wish to dispute this.
The final report proposes that intended parents must give a statutory declaration about the payments they have made in connection with the surrogacy arrangement, between six to twelve weeks after the birth.
It is proposed that there will be permitted categories of payments, to include: insurance for the surrogate, travel and accommodation costs, pregnancy related items, modest gifts for the surrogate, medical, wellbeing and related costs, additional dietary requirements relating to the pregnancy, costs of domestic support and a modest recuperative holiday for the surrogate and her family. There is no indication that there will be specific figures put on these categories of payments.
However, there will also be prohibited payments, including general living expenses, payment for the surrogate’s gestational services, and compensatory payments.
For intended parents and surrogates who aren’t able to follow the new pathway, the current parental order system will remain in place. This might be relevant for intended parents and surrogates who aren’t working with a regulated surrogacy organisation, or for intended parents who go through surrogacy abroad.
The revised parental order system will largely reflect the minimum requirements of the new pathway (ie the age restrictions, the requirement for a genetic link and relationship provision where there are two intended parents). However, it is clear that there is no requirement for a surrogate to satisfy a test of connection with the UK, thereby making it possible to apply for a parental order following an international arrangement.
The main change to the revised parental order system is the removal of the requirement for a surrogate to consent. The current system does not permit the court to make a parental order in circumstances where a surrogate does not give her full, free, and unconditional consent to the parental order being made, even where it’s clear that is in the child’s best interests. The Law Commission is proposing that this set requirement be relaxed, and that the court is given the ability to dispense with the surrogate’s consent where the welfare of the child requires it.
The Law Commission’s final report does not propose that the law should be expanded to cover intended parents who conceive via double donation. We had anticipated that this might form part of their final proposals, but the report is clear that the law will still prohibit intended parents from applying for a parental order or having access to the new pathway to parenthood.
This means that consideration will need to be given to acquiring legal parenthood or parental responsibility via other means, for example, adoption. However, this is not always possible, and it is sensible to get specialist legal advice at any early stage if you are planning to conceive in this way.
While the Law Commission’s provisional proposals (released in 2019) suggested that there may be some recognition for children who are born through international surrogacy, this has not come to fruition in their final report. This will be a disappointment to many intended parents, given that it appears that over half of the parental orders made each year are for children born through international surrogacy. However, if the wider proposals are implemented, it may be that fewer people opt for international surrogacy in favour of a domestic arrangement.
The Law Commission’s final proposals are that intended parents who conceive via surrogacy overseas must apply for a parental order on their return to the UK, in order to be recognised as the legal parents in this jurisdiction.
While the Law Commission proposes to relax some of the requirements for obtaining a parental order, this still means that families conceiving via international surrogacy are left in a legal limbo whereby they are recognised as legal parents in one jurisdiction, but not another.
Arguably, this is perhaps a wider issue in respect of the international recognition of parenthood which the Law Commission are not able to comment on. However, many hoped that they might go further in this area, to ease the legal process for intended parents who have likely already jumped through various legal hoops in the jurisdiction where their child was born.
The Law Commission have proposed the introduction of a new ‘Surrogacy Register’. This register will record information for all surrogacy agreements, including those which do not follow the new pathway, and those which take place internationally.
The intention behind the register is to record identifying and non-identifying information about surrogates, donors and intended parents, so that children born via surrogacy have access to information about their genetic origins when they reach the ages of 16 and 18.
The government will now need to consider whether they intend to implement the Law Commission’s recommendations. The responsible minister must provide an interim response within six months of publication, and a full response within a year. If the recommendations are accepted, then the bill would need to be introduced to Parliament in order to become law.
It is expected that this will likely take some time, and there is no certainty that the recommendations will be approved as drafted, or at all.
This will depend on your particular circumstances, and, given the uncertainty and timescales involved, we would suggest that advice is sought before any firm decisions are made.
For the time being, the current rules will remain in place.
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