On 29 March 2023 the Law Commission of England and Wales and the Scottish Law Commission (the Commissions) have published a report proposing improvements to existing surrogacy laws in this jurisdiction. The proposals are in recognition of the increased demand for surrogacy and that the current legal framework has remained static since the 1980s. The family law commissioner in England and Wales, Professor Nick Hopkins is quoted as saying:
“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.”
The key elements of the proposed reforms set out to ensure that surrogacy remains altruistic, protect the best interests of the child by giving intended parents and surrogates greater certainty in respect of legal parental status; provide safeguards and checks before conception takes place and incentivise intended parents who are considering surrogacy in the Commissions jurisdiction and not internationally:
A New Pathway:
This is a new regulatory route under which provided intended parents meet certain conditions, they become parents of the child from birth without needing to make any separate application. The surrogate does have the right to withdraw consent. The new pathway includes screening and safeguards including medical and criminal records checks, access to independent legal advice and counselling. The conditions are that the surrogate is at least 21 and the intended parents are at least 18; the intended parents are in a close relationship with each other; all relevant parties remain consensual and habitually resident or domiciled in this the UK.
Oversight by non-profit surrogacy organisations:
The Commissions recommend that Regulated Surrogacy Organisations (RSOs) should be established. Their role will be to support all the parties to the surrogacy agreement, and act as the gatekeepers to the new pathway. The RSOs will ensure that a surrogacy agreement meets all of the eligibility conditions; that the screening and safeguarding requirements are all met; and they are then responsible for signing the Regulated Surrogacy Statement permitting the agreement to proceed on the new pathway. The RSOs will be regulated by the Human Fertilisation and Embryology Authority (HFEA).
For intended parents who do not satisfy the preconditions for parent status at the birth of the child, the Commissions propose reformed parental orders. The main provision here is to allow the court to make a parental order where the surrogate does not consent where it is in the best interest of the child.
The Commissions have proposed that surrogate children should be able to trace their birth parent when they are older. For this the Commission has proposed a new Surrogacy register which will be maintained by the HFEA.
Payments to the surrogate:
Greater clarity is provided in respect of the types of payments that can be made to the surrogate. Payments include medical and wellbeing costs, lost earnings, pregnancy support and travel costs. The decision to permit these payments is to ensure that the surrogate is supported financially through the pregnancy and is not left in a ‘worse off’ position.
International surrogacy agreements:
Recommendations addressing legal and practical measures to safeguard children for those intended parents who enter agreements overseas. These include assisting in the acquisition of UK nationality and in recording relevant information in the Surrogacy register.
The position in this respect remains that surrogacy in the UK is altruistic and commercial surrogacy is prohibited. Further any arrangements where a surrogate could be forced under what may be an ‘enforceable contract’ under a ‘for profit’ system remains unenforceable.