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Building families through surrogacy (I): Reform of surrogacy law

In the first of two-part posting, Professor Gillian Black (Commissioner, Scottish Law Commission and Chair of Scots Private Law, University of Edinburgh), Professor Nick Hopkins (Commissioner, Law Commission of England and Wales), and Nic Vetta (Legal Assistant, Scottish Law Commission) outline the Commissions’ joint proposals for a new regulatory regime for surrogacy in Scotland and in England and Wales.

On 29 March, the published their joint report, Building families through surrogacy: a new law. The report and draft bill outline a new regulatory regime for surrogacy that offers more clarity, safeguards and support.

In this blog, we set out our main recommendations for reform of surrogacy law and then in the following post provide a closer examination of the specific recommendations relating to access to information for surrogate-born children, and how these will provide much greater benefits for surrogate-born children from a child rights perspective.

Overview of recommendations for reform

Our recommended reforms seek to place the best interests of the child at the heart of surrogacy law, and to respect the shared intentions of the parties to the surrogacy arrangement. Our recommendations also have the effect that surrogacy will remain non-commercial, by prohibiting payments to the surrogate for carrying or delivering the child, ensuring that surrogacy agreements remain unenforceable, and requiring surrogacy organisations to operate on a non-profit-making basis.

A new pathway to legal parenthood

Under the current law, the surrogate is the child’s legal mother at birth, and the intended parents must apply for a parental order after the birth to become the legal parents. Yet this results in a number of problems for all parties.

As a starting point, it does not reflect the shared intentions of the parties involved in a surrogacy arrangement. The surrogate, who does not intend to raise the child, is nevertheless legally responsible for the child until the parental order is granted. During this time, the intended parents are not the legal parents and may not have parental responsibilities and rights, although they are usually the ones caring for the child and are best placed to take decisions about the child. The parental order process can take several months to complete and brings with it a degree of uncertainty and stress for the parties, which is not in the best interests of the child.

In response, we recommend the introduction of a “new pathway”, which will enable the intended parents to be the legal parents of the child from birth and remove the need to apply for a parental order. This new pathway will introduce essential screening and safeguards for the surrogate and intended parents prior to conception, so that state regulation comes before, not after, the birth of the child. These screening and safeguarding checks include health checks, a requirement to undertake implications counselling, independent legal advice, criminal records checks, and a pre-conception assessment of the welfare of the child to be born as a result of the arrangement.

Where the parties meet these requirements and are admitted to the new pathway, then the intended parents will be the legal parents of the child at birth. Importantly, the automatic attribution of legal parental status in favour of the intended parents will not affect the surrogate’s autonomy during the pregnancy: all decisions concerning the pregnancy and birth will remain with her. She will also have a right to withdraw consent during the pregnancy and for six weeks post-birth. Where she withdraws consent during the pregnancy, the arrangement would exit the new pathway, and she would be the legal parent at birth. As at present, the intended parents could then seek a parental order to be recognised as the legal parents. Where the surrogate has not withdrawn consent when the child is born, then the intended parents will be the legal parents, as all parties had agreed at the outset. However, the surrogate would have a further six week period in which to withdraw consent: if she did so, the intended parents would remain as legal parents, but the surrogate would then be entitled to seek a parental order to be recognised as the legal parent. These provisions ensure that the surrogate’s continuing consent is central to the surrogacy agreement.

This new pathway would be overseen by a Regulated Surrogacy Organisation – a state-regulated non-profit-making organisation which would be responsible for ensure the statutory requirements of the new pathway are met, and supporting the intended parents and surrogate throughout the process.

The parental order process

Even once the new pathway is introduced, a parental order application may still be needed – for example, where the surrogate has withdrawn her consent to the agreement proceeding on the new pathway; where the new pathway is not used; or where the surrogacy took place overseas. We therefore recommend a number of reforms to the parental order process, including that a late application for a parental order (beyond the statutory six-month period) should be permitted where this is in the best interests of the child. We also recommend that, where the lifelong welfare of the child demands it, the court should be able to dispense with the requirement that the surrogate consent to the making of an order. This would bring parental orders into line with other family law where the welfare of the child is the paramount consideration for the court when making any order.

Other Related Reforms

In addition to the creation of a new pathway and the reforms to the parental order process, we also recommend a number of reforms that should apply regardless of whether the surrogacy agreement follows the new pathway or the intended parents seek a parental order.

For example, we recommend various eligibility criteria, including the new requirement that the surrogate must be at least 21 years old. Other eligibility criteria include the current requirements that there must be a genetic link between at least one of the intended parents and the child; the parties must be domiciled (or now habitually resident) in the UK; and the intended parents must be at least 18 years old.

Under the current regime, the Human Fertilisation and Embryology Act 2008 sets out that on making the parental order, the court must be satisfied that no money or benefit has been paid by the intended parents to the surrogate, other than “expenses reasonably incurred” (ss 54(8) and 54A(7)). Yet this current test is unclear and has been interpreted broadly by the courts.

Our recommendations are designed to provide clearer guidance, while guarding against exploitation and preventing the introduction of commercial surrogacy. The overriding principle is that a woman should be no better or worse off financially from being a surrogate. We therefore recommend that the law should not permit intended parents to pay the surrogate for carrying the child, compensation for pain and inconvenience, or meet her general living expenses. Instead, the intended parents should be able to cover the costs of the surrogate pregnancy which fall in specific categories; and any payments which are not expressly permitted are prohibited. Permitted payments include:

1.     costs of meeting in the period leading up to the surrogacy agreement, during the pregnancy and following the birth;
2.     medical and wellbeing costs;
3.     costs of pregnancy-related items, such as clothing or comfort aids;
4.     costs of additional food required as a result of being pregnant;
5.     costs of paying for assistance with household tasks, such as childcare or cleaning; and
6.     loss of earnings (whether someone is salaried or self-employed).

In addition to these permitted payments which are optional, there are some costs under the new pathway which the intended parents must pay or offer to pay. These costs include the costs to the surrogate of medical assessment, counselling about the implications of the surrogacy agreement, and independent legal advice as to the effect of the new pathway, together with the costs of life and critical injury insurance.

To be continued.

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