13 December 2023
In May 2018, the Law Commissions of England, Wales and Scotland started work on a 3-year surrogacy law reform project. On 6 June 2019, it published a joint consultation paper, entitled “Building families through surrogacy: a new law”. Its starting point was that surrogacy law in the UK is outdated and needs reform due to changes in medicine and science over the last thirty years. Unlike previous approaches, it started from the premise that surrogacy is now an accepted form of family building as recognised by the Department of Health and Social Care in its guidance on surrogacy arrangements (last updated July 2021). Due to the Covid-19 pandemic, this project was delayed and it published its final recommendation and new draft surrogacy legislation for government review on 29 March 2023.
The Law Commissions’ recommendations proposed a new regulated surrogacy pathway to improve surrogacy law in the UK for children, surrogates and intended parents. Subject to eligibility and the surrogate’s agreement, it proposed that intended parents became their surrogate born child’s legal parents at birth with parental responsibility without the need for a post-birth court application for a parental order. It only covered UK domestic surrogacy arrangements that met strict conditions. Where these conditions were not met or if the surrogate objected within a prescribed timescale or an international surrogacy arrangement took place, it would still be necessary to apply to the English Family Court for a post birth parental order in respect of the surrogate born child. To learn more about its recommendations for UK surrogacy law reform click here.
UK Government Response to UK Surrogacy Law Reform
However, on 9 November 2023, the UK government provided an interim response to the Law Commissions of England, Wales and Scotland’s recommendations for UK surrogacy law reform. In doing so, Maria Caulfield MP, Parliamentary Under-Secretary (Department of Health and Social Care), and Parliamentary Under Secretary of State (Department for Business and Trade) (Minister for Women), stated that “While we appreciate the importance of this work, parliamentary time does not allow for these changes to be taken forward at the moment.” She went on to thank the Law Commissions for a “comprehensive report about a sensitive and still contended area” and said the Department of Health and Social care is working with other Government departments “to review the report’s recommendations to inform a full Government response, which we will publish in due course”.
Given the demands of the rapidly evolving national and international political landscape and limited parliamentary availability in the run up to the next general election, there are understandable reasons why it was decided that there is insufficient time to table in legislative changes to surrogacy law in the UK at the moment. However, the fact remains that this is disappointing news for intended parents, surrogates, surrogate born children and families in the UK who are left having to negotiate outdated surrogacy law in the UK and the uncertainty this creates. Every child and family created through surrogacy matters and surrogacy is now an established pathway to parenthood for increasing numbers of people in the UK, with 438 parental orders granted for surrogate born children in England and Wales in 2021 and 564 granted in 2022. Added to this, a great deal of time and care has been taken by the Law Commissions of England, Wales and Scotland (in consultation with the fertility and surrogacy sector) to put together detailed recommendations and draft legislation to reform surrogacy law in the UK. As such, let’s hope that the Government’s full response in due course will enable surrogacy law reform in the UK to remain on the legislative agenda looking further ahead.
Need A Surrogacy Lawyer?
Given complex law and policy governing surrogacy and fertility treatment it is important that intended parents carefully navigate the relevant legal issues and make sure that they can put in place a viable legal and practical action plan before embarking upon a surrogacy arrangement in the UK or abroad.
Need a surrogacy lawyer? We provide a range of specialist legal strategies and 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 Ghevaert by email email@example.com or by telephone+44 (0)20 7965 8399.
Images: Louisa Ghevaert, CEO & Founder Louisa Ghevaert Associates