Surrogacy: The Law Commissions quest for change

Lauren Moir

Lauren Moir

Associate

What is the current law?

 
The surrogate is deemed the legal mother of the child and only after the birth of the child, can the ‘intended parents’ (usually two persons who have together arranged for the surrogacy to take place to have a child together) apply to the Court for a ‘Parental Order’, providing ‘Legal Parenthood’ to that couple or parent.
 
As it stands, ‘Surrogacy Agreements’ are unenforceable. What this means is that prior to the surrogate becoming pregnant and giving birth to the child, the intended parents, and the surrogate, cannot enter into any agreement as to the arrangements surrounding the surrogacy.
 
Surrogacy is becoming an increasingly popular option, with an increased use of Parental Orders from 117 in 2011, to 452 in 2021. There are, however, certain conditions that must be met.  Examples of those conditions are that:
 
  1. There must be a biological connection between the child and one, or both, of the intended parents; and
  2. Only the ‘reasonable expenses’ of the surrogate are to be paid.
 
Both conditions have been criticised by those who specialise in the field of surrogacy.  For example, the biological connection precludes single women with fertility problems from using a surrogate, as they would need to provide their egg in order to meet the criteria, rather than relying on donor ‘gametes’ (a term used to describe donor sperm and / or eggs).
 
The ‘reasonable expenses’ requirement has caused great discussion over the years as there is no definition contained within legislation, nor in case law.  This, therefore, poses the question; “how long is a piece of string?” – one person’s view of ‘reasonable’ could be entirely different to another’s.
 

Proposed changes

 
The Law Commission have sought to tighten up the law and provide clarity regarding the current legislation surrounding surrogacy in England and Wales.  Their recommendations can be found in their March 2023 report. A copy of their report can be found at:
 
https://www.lawcom.gov.uk/project/surrogacy/
 
Whilst a number of proposals have been made, some stand out recommendations are:
 
  1. Intended parents be recognised as the legal parents of the child from birth and not after a long and potentially stressful court procedure;
  2. That further information be provided in relation to payments that can be made to surrogates, which has been sought by the surrogacy community for many years; and
  3. That surrogacy agreements are to be overseen and approved by the regulated surrogacy organisation, which also provides greater transparency for all parties.
 
This is seen as a huge step in the right direction by many, given that the current law has been in place for over 30 years and is deemed out of date by many members of the surrogacy community.
 

Next steps?

 
The draft legislation is with the Government for review, who must provide their interim response within six months and full response within 12 months of publication. It is, therefore, hoped that we will have an idea of what the future holds for surrogacy law by the end of March 2024.
 

Conclusion

 
I recently attended a conference regarding the surrogacy law reforms and heard, first-hand, the emotional account of an intended parent, who went through a surrogacy journey in the US and had twins as a result. He and his wife have since applied for a Parental Order and their hearing will take place later this year.  This highlighted to me the absolute need to reform the law to make the process as simple as possible and to provide clarity to all considering the surrogacy journey.  If the Law Commission’s recommendations are accepted this will have a far reaching, and in my view positive, impact on surrogate families and their journey into parenthood.
 
If any of these issues affect you, please do not hesitate to contact a member of our Family Law team on enquiries@dmhstallard.com or call 03333 231 580.


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