Background
Surrogacy, a method of assisted reproduction where a woman carries and gives birth to a child for another individual or couple, has become increasingly common in the UK - the number of children born from surrogacy has increased almost fourfold over the last decade. However, the legal landscape surrounding surrogacy has lagged behind societal advancements and technological innovations, leading to inconsistencies, uncertainties, and gaps in protection for surrogates, intended parents, and children born through surrogacy.
The Law Commission's Recommendations
The Law Commission's report set out a comprehensive set of recommendations aimed at modernising and clarifying surrogacy law in the UK. Key proposals included:
1. Streamlining the process for transferring legal parenthood from the surrogate to the intended parents through a simplified parental order system.
Provided certain requirements were met, the new pathway to parenthood would enable the intended parents to be recognised as the child’s legal parents from birth and to be named on the first birth certificate. Currently, intended parents face a potentially significant delay before becoming legal parents, despite the fact that the child will be living with them from birth.
The report also proposed the removal of the requirement for a surrogate to consent. The current system does not permit the court to make a parental order in circumstances where a surrogate does not give her full, free, and unconditional consent to the parental order being made, even where it’s clear that is in the child’s best interests. The Law Commission is proposing that this set requirement be relaxed, and that the court is given the ability to dispense with the surrogate’s consent where the welfare of the child requires it.
2. Allowing surrogates to receive reasonable expenses related to the surrogacy arrangement, while prohibiting commercial surrogacy.
3. Providing greater clarity and guidance on the rights and responsibilities of all parties involved in surrogacy arrangements, including surrogates, intended parents, and children.
4. Enhancing legal protections for surrogates to ensure their autonomy, consent, and well-being are safeguarded throughout the surrogacy process.
5. The introduction of a new ‘Surrogacy Register’. This register will record information for all surrogacy agreements, including those which do not follow the new pathway, and those which take place internationally.
The intention behind the register is to record identifying and non-identifying information about surrogates, donors and intended parents, so that children born via surrogacy have access to information about their genetic origins when they reach the ages of 16 and 18.
Developments Over the Last 12 Months
The government published an interim response to the report in November 2023, with health minister Maria Caulfield stating “While we appreciate the importance of this work, parliamentary time does not allow for these changes to be taken forward at the moment.” The report’s recommendations are to be reviewed further and the government is due to publish a full response by March 2024.
Given the significant policy change and approach to legislation that has been proposed by the Law Commission, and a general election in the near future, it is unlikely that implementation of the recommendations is likely to be a government priority.
However, not all of the report’s recommendations require changes to legislation and so there is the potential for some improvements to be made in the meantime:
1. Changes to the Family Procedure Rules (FPR) can be made without re-drafting legislation. A change to the FPR could be made so that the court must consider whether parental responsibility should be granted to the intended parents at the first court hearing. Litigants in person are currently unaware that they can ask a judge to consider this.
2. The current rules regarding allocation could be changed to ensure that the appropriate level of judiciary deals with surrogacy cases, avoiding difficulties as seen in the recent case of AY and another v ZX [2023] EWFC 39, where at first instance magistrates declined to make a parental order because the artificial insemination had taken place outside a licenced fertility clinic, erroneously finding that these cases fall outside of s.54 of the Human Fertilisation and Embryology Act 2008.
3. A further change to the Family Procedure Rules could allow the automatic disclosure of Parental Order Reports to intended parents, as opposed to having to ask the court’s permission for CAFCASS to disclose them.
4. The Home Office and Passport Office could improve their procedures and policies for intended parents applying for a British passport for a child born through surrogacy abroad. The current system is complex and can take several months. It often results in intended parents having a lengthy stay in the country in which their child was born. During the COVID pandemic, emergency travel documents were issued for children born outside the UK by surrogacy, so we know that it is possible for the process to be streamlined and simplified.
Reform still needed beyond the Law Commission report
Looking ahead, there are still several key areas that warrant attention in the ongoing debate over surrogacy law reform in the UK and these are areas where the Law Commission’s report perhaps did not go quite far enough:
1. Despite the fact that over half of the parental orders made each year are for children born through international surrogacy, the Law Commission’s final proposals are that intended parents who conceive via surrogacy overseas must apply for a parental order on their return to the UK, in order to be recognised as the legal parents in this jurisdiction.
Whilst the Law Commission proposes to relax some of the requirements for obtaining a parental order, this still means that families conceiving via international surrogacy are left in a legal limbo whereby they are recognised as legal parents in one jurisdiction, but not another.
2. Parental orders should be made available to intended parents where surrogacy is undertaken with both a donor egg AND donor sperm (known as 'double donation').
3. Intended parents should not be evaluated for their suitability of becoming parents in an adoption-like framework, (instead using the same frameworks as those becoming parents through IVF or natural conception).
4. Payments – When it comes to applying for a parental order, the court has to be satisfied that no unreasonable payments have been made to the surrogate. There needs to be a better definition of what constitutes a 'reasonable surrogacy expense', recognising that the types/amounts of expenses will vary according to individual circumstances. Whilst this is addressed in the Law Commission’s report, careful drafting of legislation will be required to ensure it can be applied in practice.
Conclusion
In conclusion, the debate over surrogacy law reform in the UK is multifaceted, complex, and ongoing. Whilst there has been progress in raising awareness and discussions about the need for change, significant challenges remain in translating recommendations into legislative action. As we navigate these challenges, it is essential to prioritise the rights and well-being of all parties involved in surrogacy arrangements and to work towards a more inclusive, equitable, and transparent system of surrogacy law in the UK.
Given the complexities and potential pitfalls surrounding the surrogacy process and the procedure for applying for a parental order, it is crucial to obtain advice at an early stage to avoid issues arising later on. We are able to advise both intended parents and surrogates on the procedures involved, as well as acting on their behalf when applying for a parental order.
Article written by Carrie Stoneham, Senior Associate in the Divorce and Family Law Team.