Surrogacy Reform: Law Commission Review on Surrogacy

Surrogacy reform is on the cards with Law Commission review on surrogacy

There is nothing quite like welcoming a new baby into the world. As a children lawyer I have been privileged to help parents secure Parental Orders after they have had a child through a surrogacy agreement. I therefore know just how stressful the months leading up to the birth of the child are as well as the worry of how quickly a parent can secure a Court order. For many parents they couldn’t relax and enjoy their baby until all the legalities were sorted out.

Surrogacy laws were first introduced about 30 years ago. Society and the medical options available to couples have changed over the years. Many parents, medics and legal professionals have concluded that the current surrogacy legislation, once thought to be ground breaking, is no longer ‘’ fit for purpose’’ and doesn’t meet the needs of the surrogate, the parents and, most importantly, the baby.

Under current English law a surrogate mother is the legal mother of the child even if she has no genetic link to the baby. A Parental Order, in favour of the parents, can only be applied for after the baby has been born and various conditions have to be met, namely:

• The application must be made within six months of the child’s birth;
• The surrogate mother must fully consent to the Parental Order and must understand that she will be giving up parental rights;
• No payment should have been made to the surrogate mother save for necessary reasonable expenses. The Court can give retrospective approval to payments over and above reasonable expenses;
• There must be a genetic connection between the child and at least one applicant for the Parental Order;
• At the time of the application and the making of the order the child’s home must be with the person applying for the order;
• Either or both applicants must be domiciled in the UK

There is a concern amongst professionals that current UK surrogacy laws and conditions encourages the use of international surrogates where, in some countries, there is less regulation and protection for all participants.

The Law Commission reforms will consider changes to the law relating to:

• the legal parentage of the baby;
• the regulation of surrogacy including payments;
• the rights of the child to obtain information about their origin and the surrogacy arrangement;
• the rights of the surrogate, parents and child and how best to avoid exploitation in the surrogacy process.

The Commission says that a report on proposed changes in the law will be available within a year. There will then need to be an impetus to get any recommended changes in current surrogacy laws into new legislation so that all involved in surrogacy arrangements feel that the law is working to protect them and the child.

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