The Law Commission of England and Wales and the Scottish Law Commission have published a joint report on surrogacy: Building families through surrogacy: a new law. They recommend a comprehensive range of reforms to make the law of surrogacy work better for children, surrogates and intended parents and ensure that surrogacy continues to operate on an altruistic rather than a commercial basis. There is a summary of their conclusions here.
In brief, the two Commissions recommend:
- A new pathway to legal parenthood: The Commissions propose a new regulatory route for domestic surrogacy arrangements, under which intended parents would become parents of the child from birth, rather than wait for months to obtain a parental order. This would be subject to the surrogate having the right to withdraw consent. The new pathway incorporates screening and safeguards, including medical and criminal records checks, independent legal advice and counselling.
- A regulatory route overseen by non-profit surrogacy organisations: Individual surrogacy agreements under the new pathway will be overseen and supported by non-profit Regulated Surrogacy Organisations (RSOs). RSOs themselves will be regulated by the Human Fertilisation and Embryology Authority (HFEA).
- Reforms to parental orders: Despite the introduction of the new pathway, some intended parents will still need to obtain a parental order through the courts in order to become legal parents. The Commissions recommend reform to parental orders, including allowing the court to make a parental order where the surrogate does not consent, provided that the child’s welfare requires this. This would bring surrogacy law into line with other family law.
- A new Surrogacy Register: The Register would be created to add greater transparency and give children born through surrogacy the opportunity to trace their origins when they are older.
- New rules on payments: The proposed reforms are intended to provide clarity over which payments intended parents are permitted to make to the surrogate. Permitted payments would include medical and well-being costs, those to recoup lost earnings, pregnancy support, and travel. Prohibited payments would include those made for carrying the child, compensatory payments, and living expenses such as rent. These payment rules are intended to ensure that the surrogate is not left worse off through surrogacy while protecting against the risk of exploitation.
- A prohibition on commercial surrogacy: The Commissions’ recommendations are intended to ensure that surrogacy continues to operate on an altruistic, rather than a commercial basis. Surrogacy arrangements will also remain unenforceable: the surrogate could not be forced to give the child to the intended parents because of an enforceable surrogacy contract, as seen under some “for profit” systems.
- International surrogacy agreements: Many couples opt for agreements abroad, sometimes in countries where there is a high risk of the exploitation of women and children. The Commissions’ recommendations reforms are designed to make domestic surrogacy arrangements a more attractive option. However, for those who do opt for international surrogacy arrangements, the Commissions also recommend legal and practical measures to safeguard the welfare of those children, for example by assisting them in acquiring UK nationality and recording relevant information on the Surrogacy Register.