In 2018 the Law Commission, alongside the Scottish Law Commission, launched its three-year review into surrogacy believing that the current legislation to be outdated and in need of reform to better support the child, surrogates and intended parents.
Who is the child’s legal parent?
Currently, surrogacy is governed by The Surrogacy Act 1985 (SAA 1985) and certain provisions of the Human Fertilisation and Embryology Act 2008 (HFEA 2008). At birth, the surrogate mother is the child’s legal parent, even in the case where the child is biologically that of the intended parents.
If the surrogate is married or in a civil partnership, their spouse/civil partner will be the child’s second parent at birth, unless the surrogate did not give their permission for this.
Once the child is born, the intended parents must apply for a parental order under HFEA 2008 to transfer the legal parenthood from the surrogate mother to the intended parents. This process may take up to a year after the birth of the child and prove problematic and distressing to both the intended parents and the surrogate mother.
Until the parental order is made the surrogacy agreement remains an informal arrangement and the intended parents have no legal recourse for ordering the transfer of the child to them if the surrogate mother objects.
A lack of transparency and insufficient regulation has also made it difficult to regulate the surrogacy process and ensure that the standards across the board are maintained. The law currently permits “reasonable expenses” to the surrogate mother which many believe this wording is ambiguous and does not provide enough clarity regarding surrogacy payments.
Many parents have sought surrogacy services abroad to circumvent the pitfalls of the surrogacy system in the UK, however international surrogacy offers its own challenges including the child being born stateless or parentless.
Is change on the horizon?
The Law Commission has proposed to allow intended parents to become legal parents when the child is born, subject to the surrogate retaining a right to object for a short period after the birth. The new surrogacy process would also introduce safeguarding such as counselling and independent legal advice for those entering into the surrogacy arrangement.
Other proposals the Law Commission are championing include the creation of a surrogacy regulator; the removal of the requirement for a genetic link between the intended parents and the child; and the creation of a national register to allow those born of surrogacy arrangements to access information about their origins.
The purpose of the reforms is to provide greater certainty to both the intended parents and the surrogate mother and put the child at the heart of the process.
The Law Commissions’ consultation closes on 11 October 2019 and the commission are due to report in 2021.
Surrogacy Agreements
While the SAA 1985 governs surrogacy arrangements, it remains that a surrogacy agreement is not enforceable by or against any of the parties making it. Commercial or legally binding surrogacy arrangements are therefore not permissible in the UK, like they are in some other countries. There are certain rules that you must abide by when going through surrogacy and it is important to get legal advice at an early stage, before you start the process.
If you have any questions or would like to apply for a parental order, please get in touch with our family law specialists on 0161 941 4000 or email lawyers@myerson.co.uk.