On 29 March 2023, the Law Commission published proposals for comprehensive reforms to the laws relating to surrogacy. The Law Commission condemned the existing surrogacy law as not working, stating they are “not in the best interests of any of those involved.”
Under the existing law, when a child is born pursuant to a surrogacy agreement it is the surrogate who is the legal mother together with her spouse/ civil partner (if she has one). Whilst it is possible in certain circumstances for one of the intended parents to become a “second parent” from birth this usually only applies where the surrogate does not have a spouse or civil partner. This means that when the child is born often neither – or at best, only one- of the intended parents will be a legal parent at the child’s birth.
Intended parents must then apply for a parental order transferring the legal parental status away from the surrogate. Consent to a parental order cannot be given by the surrogate (and her spouse/civil partner if applicable) until at least 6 weeks after the child’s birth and court delays mean that the parental order is not usually granted for 6 months or more. Further, consent may be withdrawn at any time.
The Law Commission’s key proposals include:
- The development of a new “pathway to parenthood” for domestic surrogacies whereby a child’s intended parents can be recognised as the child’s legal parents from birth. This will only take place, however, if the surrogate does not withdraw her consent to the agreement prior to the child’s birth.
- The surrogate may also withdraw her consent up to 6 weeks after birth, but not thereafter (in contrast to the current law, where consent can only be given a minimum of 6 weeks after birth), and will need to make a court application if she no longer wishes for the intended parents to be the legally recognised parents of the baby.
- Rather than requiring intended parents to make an application for a parental order, the new pathway will be overseen by regulated surrogacy organisations, and in most cases, there will be no need for a court order.
- If consent of the surrogate is withdrawn, the court can still make a parental order if it is in the best interests of the child.
- The creation of a surrogacy register. This would allow children born through surrogacy agreements to access information regarding their origins.
- Clear categories of payment that intended parents may make to the surrogate.
English law with regards to surrogacy has been crying out for reform, and at Rayden solicitors we have experience in cases where the delays and requirements for a parental order have caused heartbreak and uncertainty to all involved. Many parents have turned instead to international surrogacy which is more likely to carry a higher risk of exploitation for the surrogate (in some jurisdictions, not all). It is hoped that the new regulations, if they become law, will offer a far greater level of protection for all involved in domestic surrogacy arrangements.
The government must respond to the Law Commission report on an interim basis within 6 months, and fully within 12 months. It then will need to be introduced in parliament. There is therefore no certainty that these proposals will become law, or when, and any draft bill introduced to parliament may be subject to change. We can advise on the current law, and how the proposed changes may affect those looking to enter into surrogacy agreements. Please do not hesitate to contact us to discuss the topic raised in this blog further.