Law Commission consultation: surrogacy update

The Law Commission's consultation on changes to UK surrogacy laws closes on 27 September 2019

Summary

With over 6 million likes on Instagram, Kim Kardashian West recently shared a first glimpse of her new-born baby boy; Psalm Ye. Her baby was born by way of a surrogate, an increasingly common way to assist the completion of families for couples struggling to conceive.

Unfortunately however the laws in England and Wales today are woefully outdated when it comes to this subject. Whilst recognizing surrogacy as a legitimate way to create families, the whole process can seem murky and unregulated, often leaving intended parents and surrogates in precarious positions of vulnerability.

With surrogacy rates proving to be consistently on the rise, the need for legal reform on this subject has never been more important. As the former President of the Family Division, Sir James Munby held, the current laws surrounding surrogacy are the 'very antithesis of sensible'.

So what is the main issue surrounding surrogacy and the current laws in place? Simply put, the main issue relates to parentage. Under the governing legislation, the Surrogacy Arrangement Act 1985, the surrogate mother is the legal parent of the child, irrespective of biological parentage. What’s more, if the surrogate is married, her spouse too is automatically assigned legal parentage.  

Further issues occur for parents who have conceived children through surrogacy overseas; whilst these parents may be legally recognised as the child’s parents in the country in which the child is born, this does not translate to the UK who will still recognise the surrogate mother (and her spouse) as having legal parental rights. This can have serious implications for the parents when returning to the UK with the child.

In order to assign legal parentage, the ‘intended parents’ are required to go through a lengthy court process. This limbo period can be problematic for a number of reasons, but most worryingly, by not having legal parentage and therefore not being granted parental responsibility, the parents are not able to make major decisions, i.e. medical decisions, for the child in their care. On paper, these rights and decision still lay with the surrogate who, quite feasibly, could be extremely hard to contact at this stage.

Future steps

On 6 June 2019, the Law Commission issued a report outlining its proposals to reform the law relating to surrogacy. The Commission proposes a new 'pathway' for domestic (ie non-international) surrogacies which would overcome the concerns by allowing intended parents to become the child’s legal parents at birth. This would be balanced with the rights of the surrogate who would have a short period to object to the intended parents becoming legal parents at birth.

Further to this, the Law Commission proposes to introduce a regulator for surrogacy and create regulated surrogacy organisations who will oversee surrogacy agreements within the new pathway.

For international surrogacy arrangement, the Law Commission wants to introduce unified guidance on nationality and immigration issues alongside provision for recognition of legal parenthood across borders, where appropriate, to help those who have had a surrogate child overseas.

The Law Commission consultation closes on 27 September 2019 whereafter the responses will be analysed, and provided to the Lord Chancellor and the Secretary of State for consideration.

Whilst the actual report may be a little heavy at 474 pages long, the Law Commission has prepared a helpful summary outlining the issues they wish to reform alongside clear instructions should you wish to respond to the report. The report also discusses other potential reforms to current surrogacy laws including payment to the surrogate mother and the future ability for a child born through surrogacy to learn more about their background.

This move is a turning point for fertility law in the UK and marks a positive step in the right direction to ensure the protection of all of those involved with building families through surrogacy.

If you have any questions or would like to know more about our update, please contact Mairi Woodward, Solicitor, on 0113 213 4029, or mairi.woodward@weightmans.com

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