The Law Commission of England and Wales and Scotland published a report and draft Bill in March 2023 outlining recommendations to the UK Government to reform the law on surrogacy.
The Report ‘Building Families Through Surrogacy: A New Law’ recommends various reforms to the law on surrogacy that are extremely positive, such as the frontloading of paperwork prior to the birth of the baby, creating a new pathway to legal parenthood at birth and specifying which payments to the surrogate are permitted.
This is a positive first step for children, surrogates and intended parents trying to navigate rules that are almost 40 years old. Will the proposed new law help those families embarking on a surrogacy arrangement outside the United Kingdom? The answer is a clear no.
A missed opportunity
The report stops short when it comes to international surrogacy and only calls for very limited reform on nationality and immigration issues with the stated aim to be avoiding unnecessary delay. The report is weary of ‘surrogacy tourism’ and adopts the position to encourage surrogacy arrangements within the UK to ensure the protections of the proposed law and to avoid a risk of exploitation.
This is surprising as CAFCASS indicates that up to half of surrogacy arrangements in the UK have an international element, so the proposals may only help up to 50% of those it is seeking to target. This is estimated at 200 surrogate children per year in the report. Include the parents and surrogate mothers and this could affect up to 800 people per year. An opportunity missed?
Under the proposed changes, international surrogacy arrangements are excluded from the new pathway and therefore the intended parents will still need to apply for a UK parental order.
Positive signs
However, there are positive changes in the proposals for international surrogacy.
Under the proposals, the surrogate’s spouse would not be deemed the legal parent of the child for nationality purposes. This will make it easier for children born to married surrogates in international arrangements to acquire British nationality from a genetically related, British, intending parent.
Further, the proposals include the recommendation that the UK Immigration Rules are changed to allow a visa for a child born through surrogacy to enter the UK. Currently, such applications are outside the Immigration Rules and at the discretion of the UK immigration authorities, with the case being deemed complicated (a long document checklist) and therefore processing times long and with a risk of refusal. There are no priority services and if something happens and an urgent travel document is needed, it can take many weeks to navigate the Passport Office antiquated emergency systems.
A proposal to allow the intending parents to open a file for a passport application or visa prior to the child’s birth, although they cannot be processed until after the birth. If applications could be pre-assessed, this would be positive step, although, in practice this will not happen given the resources at the Home Office. A more considered approach would be to reduce the processing times in such applications or open a fast-track option.
Challenges ahead
The main hurdle to the progression of this proposed Bill is the will of the current Conservative government to introduce such a Bill to Parliament given deeply held views on the subject and a General Election looming. They are unlikely to want to rock the boat when they say they are trying to stop the boat.
The Law Commission has also confirmed that the UK Government has not yet responded to the draft legislation, let alone consider introducing it in this current Parliament. After the Law Commission placed an obligation on the UK Government, an interim response was due by 29 September 2023 and a full response is due by 29 March 2024. The Secretary of State for Justice has yet to respond to confirm when a response will be issued.
Secondly, the Home Office (including HM Passport Office) do not have the will or the resources to speed up the citizenship or visa process in this area. Such cases are routinely categorise as complicated and they often take months to make a final determination; causing stress, anguish and often financial hardship to the new parents.
Whilst the Law Commission report is a welcome step, those setting on the path to starting a family through surrogacy should not hold their breath for a change soon. They may be grandparents by the time the law is updated.
Paul McCarthy, Senior Associate, Charles Russell Speechlys
