What are the current laws governing surrogacy in the UK?
In the UK, surrogacy is primarily governed by the Surrogacy Arrangements Act 1985 and certain provisions within the Human Fertilisation and Embryology Act 2008. Under these laws, the surrogate mother is legally considered the child’s parent at birth. Legal parenthood can then be transferred through a Parental Order or Adoption after the child’s birth, typically taking anywhere from six months to a year. This process may take longer if the Court’s schedule is full.
To apply for a Parental Order, you or your partner must be genetically related to the child, the child must live with you, and you must permanently reside in the UK, Channel Islands, or the Isle of Man. If there is a dispute over who should be the child’s legal parents, the court will decide based on the best interests of the child. While surrogacy agreements can be made between the intended parents and the surrogate prior to birth, they are not legally enforceable in the UK, even if the intended parents and surrogate have signed an agreement and the intended parents have covered the surrogate’s expenses. It is also illegal for solicitors to advise on such agreements.
What Problems Does the Current Surrogacy Law Cause?
The current surrogacy laws in the UK are outdated. Most of these laws were established over 30 years ago, and have not kept up with changes in society and advancements in fertility treatments. These outdated laws do not fully support the diverse family structures that exist today, including same-sex couples, single parents, and blended families.
One of the main issues with the current system is the lengthy process to establish legal parenthood after the child is born. Since the surrogate mother is considered the legal parent, intended parents must wait until a Parental Order is granted, which can take months to a year. During this waiting period, intended parents have limited legal rights over the child, and in some cases, a surrogate could even decide to keep the child. This creates vulnerability for both the intended parents and surrogates and raises concerns about the best interests of the child.
What Does the New Surrogacy Bill Propose?
The Law Commission of England and Wales, in collaboration with the Scottish Law Commission, has proposed a new framework to modernize surrogacy laws. This proposal aims to better protect children, surrogates, and intended parents. Key features of the proposed reforms include:
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Immediate parental rights for intended parents from the moment of birth, eliminating the need to wait for a Parental Order.
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Introduction of safeguards and screening processes, including criminal and medical background checks, and independent legal advice and counseling.
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Regulation of surrogacy arrangements by Regulated Surrogacy Organisations (RSOs), which would be monitored by the Human Fertilisation and Embryology Authority (HFEA).
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Reform of parental orders to allow courts to make decisions even if the surrogate does not consent, provided it is in the child’s best interest.
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Enhanced rights for children born via surrogacy, better employment rights for intended parents, and more comprehensive guidance on nationality and immigration matters.
These reforms aim to ensure legal, physical, and emotional protection for all parties involved, bringing surrogacy laws in line with other areas of family law.
What Are the Prospects for Government Action on Surrogacy Law Reforms?
The final report and draft legislation were published on 29 March 2023. The Government is currently reviewing the report’s recommendations, but no formal action has been taken yet. Due to limited parliamentary time, changes are unlikely to be implemented immediately. However, surrogacy law reform is likely to become a priority for the new government in the future.
By modernizing surrogacy laws, the UK could create a more inclusive, supportive, and legally sound framework for all parties involved in surrogacy arrangements.
