Law Commissions propose new surrogacy legal process

Surrogacy laws in the UK are outdated and should be improved to better support the child, surrogates and intended parents, according to the Scottish Law Commission and the Law Commission of England & Wales, as they published a discussion paper today as part of their joint project on the subject.

Surrogacy, where a woman bears a child on behalf of someone else or a couple, who then intend to become the child’s parents, is legal in the UK, but the law dates from the 1980s and are out of date at a time when more and more prospective parents are turning to it as a way to start a family.

At present, the intended parents must make an application to the court after the child has been born, and do not become legal parents until the court grants them a parental order. The process can take many months to complete. The Commissions are proposing to allow intended parents to become legal parents when the child is born, subject to the surrogate retaining a right to object for a short period after the birth. Further safeguards would include counselling and independent legal advice for those entering into the surrogacy arrangement, to reduce the risk of the arrangement breaking down.

This proposal is one of several by which the Commissions "aim to bring greater certainty, put the child at the heart of the process and provide comfort and confidence to both the surrogate and the intended parents". Other proposals include:

• the creation of a regulator for surrogacy organisations which will oversee surrogacy agreements within the new pathway, and ensure high standards are kept;
• in the new pathway, the removal of the requirement of a genetic link between the intended parents and the child, where medically necessary;
• the creation of a national register to allow those born of surrogacy arrangements to access information about their origins.

For surrogacy arrangements that do not qualify for this new regulated process, the Commissions are also proposing amendments to improve regulation of the existing parental order route which will make the law clearer, easier to apply and more cost-effective.

They are not yet putting forward any ideas around the important topic of payments to the surrogate. However, as part of the consultation, they want to understand public views on surrogacy payments, and the discussion paper includes questions around the categories of payment that the intended parents should be able to pay to the surrogate, to seek a consensus on this issue. They provisionally propose that surrogacy organisations should remain non-profit.

Lady Paton, chair of the Scottish Law Commission commented: "Surrogacy has become a significant issue in today’s society. The interests of all the parties involved must be properly regulated and protected. That is the focus of our proposals."

Click here to access the consultation. The deadline for responses is 27 September 2019.