Navigating surrogacy: Current laws, challenges, and future reforms

What are the current laws governing Surrogacy in the UK? 

Surrogacy is currently governed by the Surrogacy Arrangements Act 1985 and certain provisions contained in Human Fertilisation and Embryology Act 2008. Under these acts if you decide to use a surrogate, they will be the child’s legal parent at birth. Legal parenthood can be transferred by parental order or adoption after the child’s birth. This process typically takes up to six months to a year to complete, longer if the Court’s timetable is full. To be eligible for a parental order yourself or your partner must be genetically related to the child, you must also have the child living with you and must reside permanently in either the UK, Channel Islands or Isle of Man. If there is a disagreement about who the child’s legal parents should be, the courts will decide based on the best interests of the child. Surrogacy agreements can be agreed between the intended parents and the surrogate prior to the child’s birth. However, surrogacy agreements are not enforceable by UK law, even if the intended parents have a signed document with the surrogate and have paid their expenses. These documents are not considered lawful and it is illegal for solicitors to advise on them. 

What problems does the current surrogacy law cause?

The current legislation surrounding surrogacy is outdated, as most of the governing laws were introduced over 30 years ago and have not kept with societal changes and advancements in fertility treatments. It is clear the outdated legislation does not support the various forms of family life that are present today; of which single sex, single person and so called ‘blended families’ are but a few. Additionally, the complex process following the child’s birth to obtain legal parenthood has created significant problems for the intended parents, as they will have to wait until the child has been born to then apply to the court to become the child’s legal parents. The issue with this is that during this period the surrogate is the legal parent of the child, which can affect the intended parents’ ability to make decisions about the child in their care, furthermore, if the genetic parents or parent decide to legally exit the arrangement they will leave the surrogate as the legal parent. This process of obtaining a parental order after the child’s birth tends to leave both parties vulnerable, as it allows surrogates to decide to keep the child even if a surrogacy agreement has been made. The particular concern of this is that the law does not protect the best interests of the child, instead is in favour of the intended parents and surrogate. 

What does the new surrogacy bill propose?

The Law Commission of England and Wales have published its joint report with the Scottish Law Commission, outlining recommendations for a new system to govern surrogacy, which will look to work more in the favour of children, surrogates and intended parents. The Bill looks to introduce a new regulatory route for domestic surrogacy arrangements, under which intended parents would become parents of the child from birth, rather than waiting a minimum of six months to obtain a parental order. The new pathway will introduce safeguards and screenings, including criminal and medical records checks as well as independent legal advice and counselling. This pathway will be overseen and supported by non-profit Regulated Surrogacy Organisations (RSO’s), with RSOs themselves being regulated by the Human Fertilisation and Embryology Authority (HFEA). This layering of regulations and overseeing will ensure that intended parents, surrogates and the children will be protected legally, physically and mentally throughout the process. The bill aims to bring surrogacy law into line with other areas of family law, this will be done through the reform of parental orders. The bill recommends allowing the court to make parental orders where the surrogate does not consent, provided the welfare of the child requires that an order be made. Furthermore, this bill will create more rights for the children born through surrogacy, improved employment rights for intended parents, and some limited reforms and the provision of comprehensive guidance on nationality and immigration issues. This bill recommends a comprehensive range of reforms to make the law of surrogacy work better for children, surrogates and intended parents.  

What are the prospects for the new government taking action on surrogacy law reforms?

The final report and draft legislation were published on 29 March 2023. The Government is working to review the report’s recommendations, that a full response will be published in due course. That parliamentary time does not allow for recommended changes to be taken forward now. This issue is likely to be something that the new government will take a step forward on. 

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