Newly proposed surrogacy reforms which could see intended parents automatically recognised as legal parents from birth have been welcomed with open arms by family lawyers.
Wednesday saw the Law Commission of England and Wales and the Scottish Law Commission publish their long-awaited recommendations for reforms to “outdated” surrogacy laws which the authors say has “failed to keep pace with increasing demand” since the 1980s.
The report puts forward an entirely new route for domestic surrogacy arrangements under which intended parents would become parents of the child from birth rather than waiting months to obtain a parental order.
This would be subject to the surrogate having the right to withdraw consent and would also involve screening and safeguards, including medical and criminal records checks, independent legal advice, and counselling.
Burgess Mee partner Natalie Sutherland, who is recognised as one of family law’s foremost voices on surrogacy and fertility law, said the reforms were “nothing short of revolutionary”. On the new legal pathway to parenthood, Sutherland said:
“Creating a new pathway that front loads the checks and balances prior to conception means that the process after birth is minimal, with the intended parents being the legal parents at birth, enabling the intended parents and their baby, and the surrogate, to move forward with their lives as soon as the baby is born, and removes the legal limbo that surrogate babies are currently born into.
The right of the surrogate to change her mind is protected, and if she does change her mind, then there is a reformed process to deal with this, enabling the court to investigate further and being able to dispense with the surrogate’s consent where the best interests of the child requires that, which has to be right.”
Under the reforms, 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), though Sutherland added that “further detail is needed as to how this will work in practice” with the RSO representing both the surrogate and intended parents.
The report also outlines a clearer set of rules governing the payments that can be made to surrogates, under which “for profit” commercial surrogacy would continue to be strictly prohibited and surrogacy arrangements would remain unenforceable.
A Surrogacy Register would also be created under the new regime – allowing surrogate children to trace their birth origins later in life.
By having a well-regulated domestic surrogacy regime that works in the best interests of all involved, the Law Commissions’ reforms are designed to dissuade UK couples from opting for international surrogacy agreements, which they say can bring a greater risk of exploitation of women and children.
“Another important and welcome recommendation is that the surrogate’s spouse should no longer be considered the second legal parent, meaning that their consent would no longer be required,” said Sutherland.
Professor Nick Hopkins, Family Law Commissioner at the Law Commission, said:
“The use of surrogacy to form a family has increased in recent years, but our decades-old laws are outdated and not fit for purpose. Under current law, surrogacy agreements are often a complex and stressful process for all involved.
We need a more modern set of laws that work in the best interests of the child, surrogate, and intended parents. Our reforms will ensure that surrogacy agreements are well-regulated, with support and security built into the system from the very beginning.”
“Today’s recommendations for the overhaul of our surrogacy laws are long overdue,” said Connie Atkinson, family partner at Kingsley Napley LLP:
“All told, these reforms will provide more safeguards for surrogates as well as intended parents. Anything which streamlines the existing process and provides greater certainty and checks and balances for the parties involved must be a positive steps and ultimately will benefit the children born via this route and their families.
We hope the Government does not delay in implementing proposals for reform. If they are serious about engaging with issues affecting modern parents, they would be foolish not to do so.”
Natalie Sutherland concluded:
“Surrogacy law has been stuck in a time warp, failing to keep pace with changing attitudes, scientific advances and the increase in children born through surrogacy.
Overall, the recommendations strike the correct balance, ensuring that both the interests of the surrogate and intended parents are considered, and importantly, putting the child first.”
The Burgess Mee partner did, however, add two caveats to an otherwise glowing appraisal of the Law Commission’s proposals:
“Disappointingly, the Law Commissions have not gone as far as to recommend a system whereby surrogacy arrangements conducted in certain vetted countries will be automatically recognised, much like with international adoptions from certain listed countries. It was hoped that jurisdictions such as the US or Canada, with well-trodden surrogacy pathways, would satisfy the ethical standards, and would appear on such a list.
Furthermore, the Law Commissions have ignored the question of double donation. This means that where couples or single people who need to use a donor egg and donor sperm to create the embryo will still not be able to utilise the parental order process and will be required to adopt.”
The government will now consider the recommendations of the Law Commission and its draft Bill before providing an interim response within six months and a full response within 12 months.