Surrogacy — progress and proposed Reform

The law of surrogacy in Great Britain has remained largely unchanged since the 1980s despite the scientific advances and changing social attitudes.

In March 2023, the Law Commission (for England and Wales) and the Scottish Law Commission published their joint report setting out proposed reforms together with a draft bill for the reform on the law of surrogacy.

Current law

When a child is born through surrogacy, as the law currently stands, the surrogate who gave birth to the child will be the child’s legal mother even if she is not genetically related to the child. The surrogate’s spouse or civil partner, if she has one, may be the father or second parent at birth.

Currently the intended parents have no legal rights in respect of the child at birth. This can cause difficulties and uncertainty for both the surrogate and the intended parents. Following the birth, the intended parents cannot provide consent should medical treatment be required, and this may put an unwanted pressure on the surrogate to make such decisions in place of the intended parents.

The intended parents must apply for a parental order to have the parental status transferred from the surrogate to the intended parents. This order must be made within six months from the birth of the child and at the time of the application the child must be living with the intended parents.

Originally the law stated that only a heterosexual married couple could apply for a parental order. The categories of persons who could apply for a parental order was extended in 2008 with same sex couples and unmarried couples being included. This list was increased further with single parents being allowed to apply for parental orders from 2019.

Proposed reform

The Law Commission and Scottish Law Commission have now recommended the creation of a new “surrogacy pathway”.

One of the biggest changes is that this new pathway will allow the intended parents to be the child’s legal parents from birth. This would only be the case if certain criteria are met and could prevent uncertainty for the surrogate and intended parents alike. This would also prevent the scenario where the spouse or civil partner of the surrogate is the second parent.

The report recommends that surrogacy arrangements would not have a commercial element, as is the current position, however, it does recommend the types of payments that may be made to surrogates, such as life insurance, loss of earnings and medical costs. This should assist in providing clarity as to what can be expected by way of financial assistance.

The report also recommends that there would be improved employment rights for intended parents to ensure that the surrogate is treated the same as any other pregnant woman and that the intended parents are treated in the same way as any other person expecting a baby, such as time off work to attend ante-natal appointments.

Another important recommendation is that children born via surrogate will have access to a Surrogacy Register from the age of 16 in Scotland and the age of 18 in England and Wales.

Finally, in respect of International Surrogacy Agreements where the child will be born outside the UK, a parental order application will still be required. The report does, however, recommend a quicker process to obtain a passport or visa for the child to enable the child to be brought back to the UK. In this regard they have recommended that a file can be opened, and application process can begin before the child is born, although the formal application cannot be made until after the birth.

Following the publishing of this joint report, an initial response is still awaited from the UK Government. Whilst it appears that progress is being made, the law has not yet changed, and it is important for those wishing to explore surrogacy to seek legal advice at an early stage.