Commissions call for "new pathway" in surrogacy reforms
Reforms to the UK's outdated surrogacy laws have been proposed by the Scottish Law Commission and the Law Commission of England & Wales in a joint report published today.
In place of a complex legal journey through the courts after the child has been born, the Commissions propose a "new pathway" involving rigorous pre-conception screening and safeguarding.
If the right conditions are met, it would allow intended parents to become the legal parents of the child from birth, subject to the surrogate mother’s right to withdraw her consent during the first six weeks after giving birth. In that case the court would be able to make a parental order in favour of the intending parents, provided the child’s welfare requires this – bringing surrogacy law into line with other family law.
The Commissions insist on surrogacy being an altruistic rather than a commercial arrangement – commercial surrogacy would remain prohibited, the "pathway" process being overseen by non-profit organisations operating under the Human Fertilisation & Embryology Authority. Surrogacy arrangements would also remain unenforceable: the surrogate could not be forced to give the child to the intended parents because of an enforceable surrogacy contract, as seen under some “for profit” systems.
New rules would clarify what payments are permitted. These would cover medical and wellbeing costs, lost earnings, pregnancy support, and travel. Prohibited payments would include those for carrying the child, compensatory payments, and living expenses such as rent. These rules are intended to ensure that the surrogate is not left worse off, while protecting against the risk of exploitation.
A surrogacy register would be created, allowing surrogate children to trace their birth origins later in life.
With many couples currently opting for surrogacy agreements abroad, sometimes in countries where there is a high risk of the exploitation of women and children, the reforms are designed to make domestic arrangements a more attractive option. International arrangements would not however be banned; instead, legal and practical measures are recommended to safeguard the welfare of the children involved, for example through assisting them in acquiring UK nationality, and recording relevant information on the surrogacy register.
Professor Nick Hopkins, Family Law Commissioner at the Law Commission of England & Wales, commented: "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.
"By introducing a new regulatory route with greater legal certainty, transparency and safeguards against exploitation, we can ensure that we have an effective regime for surrogacy agreements that places the interests of the child at their heart."
Professor Gillian Black, commissioner at the Scottish Law Commission, added: "Our recommendation for a ‘new pathway’ ensures that critical screening and safeguarding measures for the surrogate and intended parents will take place before conception. These safeguards will be overseen by a state-regulated and approved body, which will provide support to all parties in their decision to enter a surrogacy agreement. The welfare of the child is paramount in all of our reforms.
"We hope that the Government will endorse these recommendations for law reform, to ensure that surrogacy law properly meets the needs of surrogate-born children, surrogates, and intended parents."