Building families through surrogacy: a new law

On 29 March 2023, the long-awaited Law Commission report on surrogacy reform was finally released. The project was announced back in 2017, but there were several delays which kept the surrogacy community eagerly awaiting the full recommendations.

Although the Law Commission’s proposals are extensive, it is worth keeping in mind from the outset that the Law Commission’s role is to make proposals as to how the law should be reformed. The report does not automatically change the law, and so it may be some time before we see legislative changes to the surrogacy process. This article summarises the current law and the proposed recommendations – it goes without saying that the full report is well worth a read for anyone with a surrogacy practice.

Surrogacy in England and Wales: the current law

Once perceived to be the preserve of the rich and famous, surrogacy has become an increasingly popular route to parenthood. Approximately 400 parental order applications are made each year by the Family Court in England and Wales, with applications covering both domestic surrogacy (where the child is born in this jurisdiction) and international surrogacy (where the child is born overseas).

However, the current law on surrogacy can make it difficult for couples to have domestic surrogacy arrangements. Under the current laws, surrogacy in the UK is legal but it is also purely altruistic which means that commercial surrogacy arrangements are not permitted. A potential surrogate cannot advertise and intended parents cannot advertise that they want a surrogate. For some couples this is one of the most difficult hurdles to overcome, as it can take a really long time to find a surrogate.

A surrogacy agreement is not enforceable, and cannot be drawn up by a lawyer, even if all the involved parties are taking legal advice. Although international surrogacy offers an alternative route to surrogacy, it is only legal in a few countries and they each have their own legal frameworks. Some of the most popular destinations for surrogacy are the USA, Canada, and, until recently, Ukraine. Both the pandemic and the war in Ukraine have highlighted how even the most carefully planned surrogacy arrangements can be frustrated by circumstances out of everyone’s control.

A surrogate birth mother will be the child’s legal mother at birth under English law. And, if the surrogate is married, her husband will be treated as the child’s legal father even if he is not the biological father.

It is crucial for intended parents to apply to the family court for a parental order, regardless of whether the child has been born following a domestic or international surrogacy arrangement.

The parental order transfers legal parenthood from the surrogate birth mother to the intended parents. Without the parental order, one/both of the intended parents may not be treated as the child’s legal parent in the UK.

When considering an application for a parental order, the child’s welfare is the paramount consideration. The following criteria also need to be met:

• The application must be made promptly, within six months of the child’s birth.
• The child’s home needs to be with the intended parents.
• Either or both of the parents must be domiciled in the UK, the Channel Islands, or the Isle of Man.
• At least one of the intended parents must have a genetic link to the child.
• The surrogate has to consent to the application for a parental order, and can only give her consent six weeks after the child’s birth. If married or in a civil partnership, the spouse/civil partner will also have to give their consent.
• The intended parent/s have to be over 18.
• Where there are two intended parents, they must be married, in a civil partnership, or in an enduring family relationship.
• The surrogate must only have received “reasonable expense”.

It can take around six to 12 months for the parental order to be made, and how long exactly very much depends on Cafcass availability (a parental order reporter is assigned to each case) and the court’s availability.

Problems identified by the Law Commission

Having considered very carefully the current legislative framework and following extensive consultations, the Law Commission concluded that there are “significant problems with the law”, including:

1. The intended parents are not the legal parents of the child at birth.
2. International surrogacy arrangements face a long wait in a foreign country for documentation to enter the UK.
3. Children born through surrogacy arrangements lack an adequate framework for accessing information about their origins.
4. There is a lack of safeguards for participants in a surrogacy agreement.
5. The law on payments is unclear and difficult to apply in practice.

Recommendations for reform

In order to address the problems identified above, the Law Commissions’ report and draft legislation outlines a new regulatory regime for surrogacy that offers intended parents, surrogates and the child clarity, safeguards and support. The key recommendations are:

1. A new “pathway” for UK surrogacy

If followed, the new pathway will enable intended parents to be recognised as the child’s legal parents from birth. The new pathway would also address the issues around the lack of safeguards currently in place.

The new pathway will be overseen by the new non-profit-making surrogacy organisations (“regulated surrogacy organisations”) which will have to ensure that the following eligibility criteria are met:

• The surrogate must be at least 21 years old.
• The intended parents must be at least 18 years old (as now).
• At least one of the intended parents must have a genetic link to the child (as now).
• Where there are two intended parents, they must be married, in a civil partnership, or in an enduring family relationship (as now).
• Either or both of the parents, and the surrogate, must meet a “test of connection” in the UK, the Channel Islands, or the Isle of Man at the time their surrogacy agreement is admitted on to the new pathway, and when the child is born – this is wider than the current domicile test, as it means that they must either be domiciled or habitually resident in the UK, Channel Islands or the Isle of Man.

In addition to the eligibility criteria above, which are broadly similar to the current legislation, the new pathway also introduces several safeguards:

• Medical checks and enhanced criminal record checks are to be carried out on the surrogate and the intended parents. They must also receive counselling on the implications of the intended surrogacy arrangement.
• Both the intended parents and the surrogate must enter into a surrogacy agreement, which would be approved by the regulated surrogacy organisation. This is a very significant change.
• The surrogate and the intended parents must each receive independent legal advice.
• A pre-conception assessment of the welfare of the future child must take place.
• The regulated surrogacy organisation must agree to admit the surrogacy agreement onto the new pathway.

Whilst there is no formal requirement for the surrogate to give her consent, she would have the right to withdraw her consent to the surrogacy agreement both during the pregnancy and up to six weeks after the birth of the child. Importantly, if the surrogate were to withdraw her consent before birth, then she would be treated as the legal parent at birth, and the intended parents would have to apply for a parental order. If, however, the surrogate withdrew her consent after the birth and up to six weeks, then the intended parents would be the legal parents at birth, would not need to apply for a parental order, and the surrogate would have to make an application for a parental order to gain legal parental status.

Only the surrogate can withdraw her consent; after conception, the intended parents cannot change their minds.

2. A reformed parental order process

Although the new pathway would limit the number of parental order applications, the parental order process would still need to be followed in several situations, including international surrogacy arrangements and where surrogacy teams choose to make agreements away from the new pathway. However, the Law Commission recommends some changes to the parental order process, including:

• The court having the ability to dispense with the surrogate’s consent in circumstances where the welfare of the child requires it. Notably, this is the same test applied to adoption.
• The surrogate’s spouse or civil partner should not be a legal parent of a child born through a surrogacy agreement, and their consent will not be needed.
• The court would provide information for the Surrogacy Register (see below).
• There would be permitted categories of payments.
• UK domicile or habitual residence, rather than just UK domicile.

3. Surrogacy Register

To address the lack of an adequate framework for children born to surrogacy accessing information about their origins, the Law Commission recommends the creation of a Surrogacy Register, through which the HFEA will hold information for people born through surrogacy including details of their surrogate, intended parents, whether donated gametes were used and the fertility clinic involved.

4. Permitted payments

The Law Commission recommends permitted categories of payments, in an attempt to clarify what expenses may be met by intended parents. The permitted categories include:

• Costs related to the decision to enter into a surrogacy arrangement.
• Costs of domestic support that the surrogate ordinarily undertakes.
• Safeguarding and screening costs of the new pathway.
• Modest recuperative holiday for the surrogate and her family.
• Insurance for the surrogate.
• Additional dietary requirements related to the pregnancy.
• Travel and occasional accommodation costs for purposes linked to the surrogacy arrangement.
• Pregnancy-related items.
• Modest gifts for the surrogate.
• Medical, wellbeing and related costs.
• Lost earnings and lost employment-related potential earnings.
• Costs of maintaining contact between the surrogate, the intended parents and the child after the birth.

Prohibited payments include:

• General living expenses.
• Gestational services/payment for carrying the child born of the agreement.
• Compensatory payments.
• Any other payments to the surrogate that are not permitted payments.

The intended parents would have to make a statutory declaration to the effect that all payments made have been in accordance with those permitted by law, and it would be a criminal offence to knowingly and wilfully make a false declaration as to the payments made.

Response to the recommendations

On the whole, the proposed reforms have been welcomed by the surrogacy community. It is obvious that the Law Commission has worked incredibly hard on the report. However, there are some who say that the proposed reforms do not go far enough. The general feeling is that the reforms appear to be motivated by a desire to make domestic surrogacy arrangements easier through the new pathway, but it is not clear whether there will be a sufficient number of domestic surrogates to enable this to happen. Intended parents relying on international surrogacy arrangements will still have to make an application for a parental order (albeit some reforms are suggested to this process). The new pathway would undoubtedly place a huge burden on the regulated surrogacy organisations, which will remain non-profit organisations. No doubt those organisations will need time, and resources, to be able to adapt to the recommendations contained within the report.

It is worth keeping in mind that whilst the reforms are welcomed by the surrogacy community, change will only come through legislative reform. Family law issues do not always take priority – back in 2014, the Law Commission released the Matrimonial Property Needs and Agreements report and introduced the concept of “qualifying nuptial agreements”. That is nearly ten years ago, and yet there has been no legislative change.

Whilst I am hopeful that the drive towards more open discussions around infertility and baby loss (for which we can thank many family lawyers including Natalie Sutherland at Burgess Mee and Keeley Lengthorn at Taylor Rose MW) will force alternative routes to parenthood higher up the political agenda, change will not come overnight, and the government’s interim response (on 8 November) was to plead lack of Parliamentary time. It looks like parental orders are here to stay for the foreseeable future!