Surrogacy laws come under Law Commissions' scrutiny

A joint review of the laws on surrogacy is being opened by the Scottish Law Commission and the Law Commission of England & Wales.

The project forms part of each Commission’s current Programme of Law Reform and the UK Government has referred the project to both Commissions as a joint project, with funding to the Law Commission of England & Wales.

Surrogacy, where a woman bears a child on behalf of someone else or a couple who intend to become the child’s parents, has become increasingly common since first recognised by the law 30 years ago, and it is thought that the number of babies born via surrogacy could be 10 times higher than it was a decade ago.

The Commissions say there are significant problems with the laws which govern this process, the Surrogacy Arrangements Act 1985 and certain provisions of the Human Fertilisation and Embryology Acts 1990 and 2008. They have already identified three potential areas of concern:

• difficulties with parental orders – a parental order transfers parentage from the surrogate mother to the intended parents. But that process can only happen after the baby is born and is subject to conditions which may require reform;
• international surrogacy – the uncertainty in the current law may encourage use of international arrangements, where there are concerns about exploitation of surrogates;
• how surrogacy is regulated – the rules governing how surrogacy is undertaken should be brought up to date and further improved.

When it consulted on projects for its 10th programme of law reform, which began this year, more than 340 people and groups told the Scottish Law Commission that the present law is not fit for purpose.

In a joint three-year project the Commissions will undertake extensive public consultation. They aim to publish a consultation paper within a year.

Scottish Commissioner David Johnston QC commented: “Surrogacy is becoming more common every year, so it’s important that we have the right laws in place to protect all involved.

“That’s why we’ll be consulting widely to make sure we have surrogacy laws that work for the parents, the surrogate and, most importantly, the child.”