Current Law & Issues
The current law which governs surrogacy has been around for over 35 years, The Surrogacy Arrangements Act 1985 constitutes the majority of the legislation but since then the Human Fertilization and Embryology Act in 2008 was an addition to this legislation. There has since been scientific and medical advances and a change in the public perception to surrogacy that has raised concerns that there are significant problems with the current law. The Law Commission of England and Wales has acknowledged these problems and the fact that there is insufficient regulation which makes it difficult to monitor the surrogacy process.
Under the Human Fertilisation and Embryology Act 2008 the surrogate who carries the child is treated as the mother of the child, this is a major issue with the current legislation. This means the intended parents cannot be considered as the parents of the surrogate child straight away. At birth the surrogate will be recognised as the child’s mother, and her name would also be on the birth certificate and if she is married her spouse would be named as the second parent. This makes it difficult as if the child is to live with the intended parents, they are unable to make parental decisions and are eft unrecognised as the child’s parents.
This can lead to further issues with the delay in recognition of parenthood, which include, the surrogate changing her mind and seeking to remain the child’s legal parent or if the intended parents separate during or before the parental order proceedings. Many intended parents are unaware that the application for a parental order must be made within six months of the child’s birth, although there have been a number of cases where the time limit has been extended.
International surrogacy can be even more complicated, under UK law the birth parents of the surrogate child born abroad are considered the legal parents even if the local birth certificate has the intended parents’ names, therefore the intended parents must also obtain a parental order in the UK.
While surrogacy is legal in the UK, commercial surrogacy is illegal. Which raises another issue of concern. The payments allowed to be made to the surrogate are reasonable expenses only. For example, medical bills, loss of earnings etc. Compensation for expenses that have arisen as a direct result of the pregnancy can be paid, advertising surrogacy is illegal unless done on behalf of a non-profit organisation.
There is a lack of clarity as to what constitutes reasonable expense, this has been recognised by the Law Commission. This term has not been defined in the legislation and due to the lack of clear guidance, the court have retrospectively permitted payments to surrogates beyond the scope of reasonable expenses, this has been when they consider it is in the best interest of the child to do so but it is not always clear what will and will not be allowed.
Over the last 40 years surrogacy had become more common and families diversified. The law has not kept up to date while other parts of Fertility law have been modernised, surrogacy law has remained unchanged. The entire process of surrogacy in the UK is uncertain for both the intended parents, who may have to wait for a considerable period of time and jump through various legal hoops to finally be recognised as their children’s legal parents and for the surrogate, who, should the intended parents fail to get a parental order within six months of the birth, could end up with legal responsibility for a child they did not intend to keep.
The key proposals for reform are as follows:
- A new pathway to legal parenthood in surrogacy which allows the intended parents to be legal parents from birth.
- Requirements and safeguards for the new pathway.
- A regulator for surrogacy and the creation of regulated surrogacy organisations, who oversee the surrogacy agreements within the new pathway.
- The removal of the genetic link between the intended parents and the child, where medically necessary (in the new pathway and potentially for all domestic arrangements; genetic link still required for international arrangements).
- Creation of a register to allow those born of surrogacy arrangements to access information about their origins.
- For international surrogacy arrangements operational reforms, unified guidance on nationality and immigration issues and provisions for recognition of legal parenthood across borders. Where appropriate to help those who have had a surrogate child overseas to bring the baby into the UK.