27 February 2020

A new approach to surrogacy to protect everyone


Suzanne Todd
Partner | UK

#ModernRelationships

Surrogacy is a ‘life line’ for some couples and the building block used by increasing numbers of modern families to have children of their own. However, UK surrogacy law is significantly lagging behind the science. Created over 30 years ago when IVF was first developed and when surrogacy was to be tolerated but not encouraged, some of the headline issues with the current law are:

  • On birth, the child’s legal parents are the surrogate (this is the case even where she carries a donor egg) and, if she is married or in a civil partnership, her partner will be the second legal parent by default.
  • Intended parents can first apply for a parental order six weeks after their child’s birth and the court process to achieve the order can take between six and 12 months. During that time their newborn child is in legal limbo.
  • Any agreement reached between the surrogate and intended parents is non-enforceable and parties on both sides are vulnerable to a decision by the other to pull out.
  • The lack of legal regulation means some people seek surrogates on social media, entering into a non-regulated, unprotected environment that largely relies on goodwill and luck, without safeguards for medical or psychological suitability, leaving the surrogate and the intended parents both open to exploitation.

Last year, the Law Commission embarked on a consultation on surrogacy and published a consultation paper which included proposals for a new approach to domestic and international surrogacy arrangements. Under the proposals relating to domestic arrangements, regulated surrogacy organisations would be given responsibility for overseeing the creation of surrogacy arrangements, providing guidance and advice about the underlying agreement, as well as arranging medical and psychological screening and mandatory counselling for all involved. Significantly, the proposals include introducing laws that would make the intended parents the legal parents from the birth of their child, removing the need for court proceedings (subject to the surrogate’s right to change her mind).

For families where there has been an international surrogacy arrangement and the child is born in a foreign country, the Law Commission report acknowledges the need for there to be unified guidance on nationality and immigration issues and provision for recognition of legal parenthood across borders to help those who have surrogate child overseas bring their baby into the UK.

Responses were encouraged from all stakeholders and the Law Commission is now considering these and preparing a final report and draft Bill which they hope to publish in 2021.

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Category: Article