On 6 June 2019, the Law Commission published its consultation paper on surrogacy law. Responses are invited up to 27 September this year.
This 502 page report is a comprehensive analysis of the current laws, historical development, the reasons for reform, current practice and proposals for reform. Having worked in this area for over 10 years now, and concluded that our current laws are simply not fit for purpose, I am excited and proud to hope that in the coming years, the UK may have the most comprehensive surrogacy laws in the world.
Once the responses to the report have been reviewed, the commission will prepare a draft bill in 2021. This is such a significant development for surrogates and intended parents. The hope and aim is to produce laws which will protect the interests of everyone involved – the parents, the surrogate and most importantly the child.
The key proposals for reform are ambitious and wide ranging:
- The creation of a new pathway to legal parenthood in surrogacy, which will allow intended parents to be legal parents from birth.
- Requirements and safeguards for the new pathway.
- A regulator for surrogacy and the creation of regulated surrogacy organisations, who will oversee surrogacy agreements within the new pathway.
- Removal of the requirement of a genetic link between the intended parents and the child, where medically necessary (in the new pathway, and potentially for all domestic arrangements; genetic link still required for international arrangements).
- Creation of a register to allow those born of surrogacy arrangements to access information about their origins.
- For international surrogacy arrangements operational reforms, unified guidance on nationality and immigration issues, and provision for recognition of legal parenthood across borders, where appropriate, to help those who have had a surrogate child overseas to bring the baby into the UK.
The law commission has presented a clear visual aid, which can be found here, to show how the new pathway to legal parenthood would work, in domestic cases (those where the surrogacy arrangement takes place in the UK). There will be matching, medical checks, CRB checks, legal advice, counselling, written surrogacy agreement, and a welfare assessment. In stark contrast to the current legal position, intended parents will be the child’s legal parents from birth (so there is no interim period where the intended parents cannot make decisions for the child). There will be a national surrogacy register to hold information about the surrogacy, parents and egg/sperm donors to allow surrogate born children to access information about their conception.
The proposed new pathway will be subject to sensible safeguards, including the existence of a written agreement between the parties (currently not enforceable), an assessment of the welfare of the child, necessity for independent legal advice, counselling, medical screening and CRB checks. All of this is crucial to ensuring the welfare of a surrogate born child.
The law commission also makes recommendations to reform the parental order process (which will still be used for international surrogacy and as an alternative to the new pathway). There is a proposal to remove the 6 month time limit (referring to the deadline within which an application should be made). This reflects current practice and judicial interpretation of the current laws.
If you are thinking of surrogacy as an option for parenthood, or you already have a surrogacy arrangement in place and you want to know more about how the law will affect your situation, please get in touch Claire Wood for advice. We offer a fixed fee first consultation for surrogacy advice.