30 March 2023
On 29 March 2023, the Law Commission of England and Wales and the Scottish Law Commission published their long awaited final recommendations to reform surrogacy law in the UK, together with draft legislation. In doing so, they recommend a new system to govern surrogacy and improve surrogacy law in the UK for children, surrogates and intended parents. The UK Government must now review and consider whether to implement these recommendations.
The Law Commission of England and Wales and the Scottish Law Commission’s recommendations seek to:
- Ensure that surrogacy continues to operate on an altruistic and not a commercial basis in the UK.
- Protect the best interests of the surrogate born child by providing greater certainty about legal parenthood for intended parents and surrogates.
- Reflect the shared intentions of surrogates and intended parents and enable intended parents to be recognised as legal parents from birth, provided this remains the wish of the surrogate.
- Protect against the exploitation of women who become surrogates.
- Put in place safeguards and checks before conception takes place.
- Protect the surrogate’s autonomy through pregnancy and childbirth.
New Pathway to Legal Parenthood For Domestic (UK) Surrogacy
They propose a new pathway to legal parenthood for domestic surrogacy arrangements in the UK, to enable intended parents to become the surrogate born child’s legal parents at birth, subject to eligibility conditions.
New Pathway: Eligibility Conditions
- The surrogate must be aged 21 years or more.
- The intended parent/s must be at least 18 years old.
- At least one of the intended parents must have a genetic link to the child (thereby prohibiting the use of double donation i.e. donor eggs with donor sperm).
- In cases involving two intended parents, they must be married, in a civil partnership or living as partners in an enduring family relationship.
- At least one of the intended parents and the surrogate must meet a test of connection with the UK (domicile or habitual residence) at the time the surrogacy agreement is admitted on to the new pathway and when the child is born.
New Pathway: Pre-conception
The new pathway to legal parenthood for domestic UK surrogacy arrangements will also require pre-conception:
- Matching of intended parents and surrogate potentially through a Regulated Surrogacy Organisation (RSO).
- Medical checks of the surrogate and intended parents.
- Enhanced criminal records checks of intended parents and any adult over age 18 who lives with the intended parents, the surrogate and her spouse or civil partner or partner.
- Independent legal advice for the surrogate and intended parents.
- Implications counselling for the surrogate and intended parents.
- Assessment of the welfare of the child to be born through surrogacy.
- Regulated Surrogacy Statement signed by the surrogate, intended parents and RSO. The essential elements of this should include:
- A statement that the intended parents will be the legal parents at birth and the surrogate will not be the child’s legal parent, subject to her withdrawing her consent to the surrogacy agreement before birth.
- Confirmation that a welfare of the child assessment has been completed to the RSO’s satisfaction.
- Confirmation the parties have fulfilled the screening requirements.
- A statement by the intended parents and surrogate that the surrogate born child will have their home with the intended parents.
- A description of permitted payments to be made by the intended parents to the surrogate.
- Identifying information of those involved in the surrogacy agreement (the intended parents, surrogate, RSO and clinic).
- Details of whose genetic material is being used in the conception (including the identity of the surrogate, intended parents and known donor or in the case of UK identity-release donors details of how to access information regarding the donor through the HFEA Register of gamete donors and non-identifying information about the intended parents, surrogate and any known donors).
New Pathway: Post Conception
Following conception under the new pathway to legal parenthood in domestic UK surrogacy arrangements:
- The surrogate can withdraw her consent until six weeks after the birth of the child.
- If the surrogate does not withdraw her consent prior to the birth, the intended parents are the child’s legal parents from birth (the surrogate is not the legal parent).
- If the surrogate withdraws her consent during the pregnancy, she will be the legal parent at birth (one of the intended parents may also be a legal parent through operation of current law) and the intended parents may apply to court for a parental order.
- If the surrogate withdraws her consent within the six week period after the child’s birth, the intended parents will remain the legal parents. The surrogate is not the legal parent but she can apply to court for a parental order to become the legal parent.
- The surrogate’s spouse of civil partner will not be the legal father or second parent of the surrogate born child, thereby respecting the surrogate’s autonomy to make the decision to carry a surrogate pregnancy.
- The RSO will provide prescribed information on the surrogacy agreement to be entered onto the Surrogacy Register.
- Intended parents make a statutory declaration about payments they have made to the surrogate.
Reformed Parental Order Process
It will still be possible for intended parents or a surrogate to apply for a parental order to become a surrogate born child’s legal parents in the following situations:
- Where a surrogate under the new pathway withdraws her consent before the child is born (thereby becoming a legal parent). The intended parents will then apply for a parental order and the Court will determine the child’s legal parentage.
- Where the surrogate withdraws her consent within the six week period after the child’s birth. The intended parents will be the child’s legal parents and the surrogate can apply to court to seek to become a legal parent.
- Where surrogacy teams undertake a surrogacy arrangement outside of the new pathway.
- In cases involving international surrogacy arrangements. Intended parents will continue to need to apply for a parental order to be recognised as the child’s legal parents in the UK.
Additional recommended changes to the parental order regime include:
- The Court should be able to dispense with the requirement that the surrogate consents to a parental order in circumstances where the welfare of the child requires it.
- The consent of the surrogate’s spouse or civil partner should not be needed to the grant of a parental order as they should not be a legal parent of a child born through a surrogacy agreement.
- The time limit for making a parental order should be kept at six months post birth, but the court should have power to dispense with it when required to secure the child’s lifelong welfare.
Need a surrogacy lawyer? Louisa Ghevaert Associates provides a range of specialist legal solutions to assist with the management of surrogacy law, legal parentage, parental responsibility, birth certificates and the upbringing of surrogate born children. If you are considering, or are part way through, a surrogacy arrangement in the UK or internationally and you would like to discuss your situation or you require specialist fertility, surrogacy and family law assistance please contact Louisa by email email@example.com or by telephone +44 (0)20 7965 8399.