The Law Commissions of Scotland and England and Wales have published proposals to reform UK surrogacy law.
Their joint report and draft legislation are the results of a lengthy consultation and the government's recognition that surrogacy is a legitimate form of family-building (see BioNews 1001 and 940). A proposed pathway would offer the possibility for intended parents (IPs) to be their child's legal parents from birth, but other aspects of current law would be retained such as the ban on paid 'commercial' surrogacy, and the requirement for a genetic link between the child and IP(s).
'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,' said Professor Nick Hopkins from the Law Commission of England and Wales.
The report proposes a new pathway, which if followed, will allow the IPs to be their child's legal parents at birth, rather than having to wait to apply for a parental order. Currently, a parental order cannot be obtained until at least six weeks after the birth, during which time the surrogate remains the child's legal parent.
To access this pathway, IPs and surrogates will need to follow a set of regulations overseen by a Regulated Surrogacy Organisation, which aim to protect the interests of the IP(s), surrogate and future child. Requirements would include background checks, health screening, legal advice and implications counselling, and insurance for the surrogate, which should all be in place before conception.
Another proposed change involves the implementation of a more robust framework surrounding payments to surrogates. Current law allows IPs to pay their surrogate 'reasonable expenses' but these are poorly defined and difficult for courts to enforce. The report recommends categories of permitted payments such as medical costs, lost earnings and travel expenses, as well as those that are deemed inappropriate such as living expenses or compensation for carrying the pregnancy.
The report also recommends the creation of a surrogacy register, similar to one already in place for donor conception, where surrogate-born people can find information about their genetic and gestational origins.
PET's director, Sarah Norcross, welcomed the proposals: 'UK surrogacy law is badly out of date, and is at odds with the reality of many families built through surrogacy,' she said. 'The Law Commissions' bold proposals show that they have listened to calls from surrogates and intended parents, for greater certainty about who the children's legal parents are.'
The proposals will not become law until the bill is debated and passed by parliament.
'We hope that the Government will endorse these recommendations for law reform, to ensure that surrogacy law properly meets the needs of surrogate-born children, surrogates, and intended parents,' said Professor Gillian Black from the Scottish Law Commission.
Sources and References
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Surrogacy laws to be overhauled under new reforms – benefitting the child, surrogate and intended parents
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Surrogacy
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Law Commission: final report on surrogacy law reform in the UK
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UK surrogacy law review says major changes needed – but campaigners say it doesn’t go far enough
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Family lawyers welcome 'revolutionary' surrogacy recommendations
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