Surrogacy Reforms - What You Need To Know

The Law Commission and Scottish Law Commissions have published their joint report “Building Families through Surrogacy: A New Law” today. 

This is an important day for those working in the field of surrogacy law as there haven’t been any major legal reforms for over 40 years. 

The report and draft bill outline a new scheme that would offer more clarity, safeguards, and support for surrogates, intended parents and those born through surrogacy. 

The key recommendations are as follows: - 

1. The current law provides for the surrogate to be the legal mother from birth. The intended parents are required to apply to court for a Parental Order after the birth. If they succeed, they become legal parents and the surrogate’s legal parenthood is extinguished. 

• This does not reflect the intensions of those involved in a surrogacy arrangement, as it means the surrogate is legally responsible for the child for a number of months whilst the process is completed, leading to uncertainty and stress. 
  
  
• A new administrative pathway is suggested for domestic surrogacy arrangements. This will ensure there is proper screening and safeguarding before conception takes place including health checks, counselling, and legal advice. There will also be eligibility criteria that must be met such as the surrogate being over the age of 21, and the intended parents being domiciled in the UK. It is recommended that if the criteria are met, and the arrangement is approved by a not-for-profit Regulated Surrogacy Organisation, licenced by the HFEA, then the Intended Parents will be legal parents from birth, without having to apply to court for a Parental Order. 
  
  
• The surrogate would still have complete autonomy during the pregnancy and birth. She would also have the right to withdraw consent until six weeks after the birth. If that happened, then the Intended Parents would need to apply for a Parental Order. 

2. It is recommended that there should be clearer rules about the payments surrogates can receive. Whilst they should not benefit from the arrangement, they should also not be left financially worse off because of it. It is recommended that the Intended Parents should be allowed to reimburse surrogates for specific costs arising from the pregnancy, and the surrogate should be able to recover those costs from the intended parents. 

3. Another suggested reform is that there should be a surrogacy register so that people born through surrogacy can find out about their gestational and genetic origins. 

The proposals are positive, and if the draft bill is implemented by the government, it would significantly improve outcomes for everyone involved in domestic surrogacy, providing long overdue clarification and greater certainty to the process. However, the risk in the current political climate is that the bill will not be given the attention it deserves.