The Law Commissions published their joint report, 'Building Families through Surrogacy: A New Law', on 29 March 2023. The report and draft Bill together outline a new regulatory scheme for surrogacy that offers more clarity, safeguards and support for all parties involved. This article sets out the key recommendations in the report.
A new pathway to parenthood
The current law provides that the surrogate is the child's legal mother at birth and the intended parents must apply to the court for a parental order after the birth of the child to become the legal parents. This process can take several months to complete and, until then, the surrogate – who does not intend to raise the child – is legally responsible for the child.
This does not reflect the shared intention of the parties and can lead to uncertainty and stress – for the surrogate who remains legally responsible for a child she is not raising, and for the intended parents who are raising a child of whom they are not the legal parents. This situation also fails to respect the best interests of the child, by creating a disparity between their legal and practical kinship networks and identity.
In response to these issues, we recommend the introduction of a 'new pathway'. The new pathway will, for the first time, introduce important screening and safeguarding checks for the surrogate and the intended parents, which must be completed before the parties go ahead with conception. These screening and safeguarding checks will include health checks, a requirement to undertake implications counselling, independent legal advice, criminal records checks, and a pre-conception welfare of the child assessment.
We also recommend eligibility criteria, requiring that the parties must be domiciled or habitually resident in the UK, that the surrogate must be at least 21 years old, and that the intended parents must be at least 18 years old. A further requirement is that there must be a genetic link between at least one of the intended parents and the child, so double donation is not permitted.
If the requirements of the new pathway are met, and approved by a Regulated Surrogacy Organisation, then the intended parents will be the legal parents at birth, and there will be no need for them to apply for a parental order.
Importantly, the automatic recognition of the intended parents as the legal parents will not affect the surrogate's autonomy: all decisions concerning the pregnancy and birth will remain with her. She will also have a right to withdraw consent during the pregnancy and for six weeks post-birth – if she does so, then the legal parents of the child will be determined on a parental order application. As in all family law matters, the best interests of the child will be the paramount consideration in making that decision.
What is a Regulated Surrogacy Organisation?
To be admitted onto the new pathway, a surrogacy agreement will need to be approved and overseen by a Regulated Surrogacy Organisation (RSO). These will be non-profit-making organisations, licensed and regulated by the Human Fertilisation and Embryology Authority (HFEA). RSOs will be the only bodies able to approve surrogacy teams to enter the new pathway and, in doing so, confirm that the required screening and safeguarding have been completed.
New rules on payments
The current payments framework lacks certainty regarding what payments are permitted as 'expenses reasonably incurred'. Our recommendations on payments address this and make it clear that our scheme does not allow for commercial surrogacy.
Our overarching policy is that while the surrogate should not benefit financially from a surrogacy agreement; neither should she be left worse off. Accordingly, we recommend that the law should prohibit intended parents paying the surrogate for her gestational services, compensation for pain and inconvenience, or general living expenses. Instead, we recommend that the law should permit intended parents to reimburse specific costs arising from the surrogate pregnancy, to a pre-agreed level.
Although surrogacy agreements should remain unenforceable, we recommend that the surrogate should be able to recover from the intended parents any costs which she has incurred that fall within the permitted categories and which they had agreed to pay her.
A new Surrogacy Register
At present, people can find out about their gestational and genetic origins in several ways, such as from their birth certificate, court files from a parental order application, or the existing HFEA Register of donor-conception. However, there are gaps in the current framework for surrogate-born people because it was not developed with them in mind. To address these gaps, we recommend creating a Surrogacy Register, which will work alongside the existing HFEA Register for donor conception.
We recommend that, like the existing register, the new Surrogacy Register should be maintained by the HFEA. The Surrogacy Register will record information for all surrogacy agreements entered into after the new law comes into force, whether in or outside the new pathway, and domestic or international. This will make it more straightforward for surrogate-born people to access information about their origins.
It is for the UK Government to decide whether to introduce our draft Bill giving effect to our recommendations. The Commissions' view is that the reforms will improve outcomes for all parties involved in surrogacy and provide long overdue clarification and certainty to the surrogacy process as a whole.
Professor Gillian Black, Law Commissioner responsible for Surrogacy at the Scottish Law Commission, will discuss the 'Building Families through Surrogacy' report and accompanying draft Bill at the free-to-attend online event 'Surrogacy Law: What Is Intended... For Parents? For Surrogates? For Children?'.
This event is produced by PET in partnership with the Scottish Government, and is taking place from 5.30pm-7.30pm (BST) on Wednesday 19 April 2023. Find out more and register here.