Surrogacy has become an increasingly popular way for individuals and couples to create families, but the legal landscape surrounding surrogacy in the United Kingdom has been in need of reform for quite some time. Recent years have seen discussions about potential changes to the UK's surrogacy law, with the aim of creating a more balanced and supportive framework for all parties involved.
The joint report on Surrogacy Reform was published by the Law Commission of England and Wales and the Scottish Law Commission on 29 March 2023. The report is over 600 pages long and addresses the current law on surrogacy and its problems. It also makes recommendations for a reform of the law to make it work better for children, surrogates and intended parents.
The Current State of Surrogacy Law in the UK
Currently, the UK's surrogacy law is governed by the Surrogacy Arrangements Act 1985 which was introduced over 30 years ago. This legislation, although well-intentioned, has proven to be inadequate in addressing the complex issues that modern surrogacy arrangements entail. Under the current law:
Commercial Surrogacy Prohibition: Commercial surrogacy, where surrogates are paid beyond "reasonable expenses" is illegal in the UK. This prohibition aims to prevent the exploitation of vulnerable individuals.
Parental Order Requirement: Intended parents must apply for a parental order after the child's birth to transfer legal parenthood from the surrogate to themselves. This process can be lengthy, costly, and sometimes cumbersome, requiring various legal requirements to be met.
Lack of Clarity: The existing law doesn't offer comprehensive guidance on issues such as parental rights, the role of surrogates, and the rights of the child. This has led to uncertainty and potential legal disputes.
Proposed Changes and Reform to UK Surrogacy Law
In light of the shortcomings of the current law, various proposals for reform have emerged. The most notable proposed changes include regulating commercial surrogacy, parental orders pre-brith and introduction of enforceable surrogacy agreements.
Regulation of Surrogacy Agencies
A key aspect of reform is the potential regulation of surrogacy agencies, which would be responsible for matching intended parents with surrogates, providing counseling, and ensuring appropriate compensation for surrogates.
Compensated Surrogacy
A departure from the current law, there are discussions about allowing compensated surrogacy under regulated conditions. This could include clear guidelines on reasonable expenses and safeguards to protect all parties involved.
Pre-Birth Parental Orders
The reform may streamline the parental order process by allowing intended parents to apply for the order before the child's birth. This could expedite the legal recognition of parental rights and reduce uncertainty.
Legal Parenthood from Birth
Another proposed change is granting intended parents legal parenthood from birth, eliminating the need for parental orders and providing a clearer legal status for the child.
Surrogacy Agreements
The reform could introduce enforceable surrogacy agreements that outline the rights and responsibilities of all parties involved. This would provide clarity and potentially reduce disputes.
Benefits of Proposed Changes
The proposed changes to UK surrogacy law offer several benefits:
Enhanced Protection: Regulated surrogacy agencies can ensure that all parties are informed, supported, and protected throughout the process.
Legal Clarity: Clear guidelines and enforceable agreements can reduce ambiguity and prevent potential disputes over parental rights and responsibilities.
Reduced Stress and Expense: Allowing pre-birth parental orders and granting legal parenthood from birth can streamline the legal process and minimize the emotional and financial burden on intended parents.
Respect for Autonomy: Allowing compensated surrogacy respects the autonomy of surrogates, acknowledging their role and contribution while ensuring their well-being.
The proposed changes to UK surrogacy law signify a step forward in creating a more comprehensive and supportive legal framework for surrogacy arrangements. These changes aim to strike a balance between protecting the interests of all parties involved and recognising the evolving landscape of family creation. As discussions continue and potential reforms take shape, it is crucial to prioritise the well-being of surrogates, intended parents, and the children born through these arrangements. By embracing these changes, the UK can modernise its surrogacy law and create a more compassionate and efficient system for all.
What happens next?
The report included a draft bill which set out the intended recommendations for reform which the government will review. It will then be for the government to decide whether to implement the recommended proposals and change the law. There is not currently any indication on whether Parliament are going to implement these changes.
If you are considering entering the surrogacy route to parenthood, or you are a surrogate seeking advice, we can advise you on the current law and process involved in this country.
Speak to a solicitor about your circumstances and we'll advise you on your legal rights. Call us on 0161 503 0553 or email info@msdsolicitors.co.uk