The question of surrogacy in the UK
It’s an area of family law that isn’t often discussed in public. Indeed, many people incorrectly think that it’s still illegal in this country. But surrogacy is an accepted practice in England and throughout the UK, as long as it isn’t done for profit. However, in June the Law Commission of England and Wales, along with the Scottish Law Commission announced that surrogacy laws were falling behind the times, were unfit for purpose, and need a complete overhaul. The intention with any review of the surrogacy laws is to ensure every party is fully protected throughout the process, including surrogates, intended parents and, of course, the child itself.
Surrogacy is recognised by the UK Government as a ‘legitimate form of building a family’, but apart from the ‘Thou shalt not make a profit’ clause, the rest of the legislation surrounding this incredibly sensitive and emotional issue is as clear as mud.
The Law Commission, therefore, has proposed legislation to allow the intended parents to become the child’s legal parents at birth, so long as the surrogate is allowed to retain a certain right to object for a short period after giving birth.
Currently, intended parents have to apply to the courts to become the child’s legal parents, and this isn’t granted until they receive a parental order. This process can take months (especially if there is a challenge to the request) and can cause considerable distress to both the intended parents and the surrogate.
Not fit for purpose
The current laws have been described by the Law Commission as ‘not fit for purpose’, and as more families are turning to surrogacy in the UK, it is essential that the legislation is brought into line with modern practices.
The consultation is designed to find out how to move the legislation forward, and ensure that everyone is properly protected, especially the child. The review is sweeping, and also looks at such sensitive topics as egg donation, as well as the wider laws around surrogacy.
The proposal to review the surrogacy laws in the UK has been widely welcomed by family law experts, who wholeheartedly agree that a shake-up in the UK’s somewhat archaic legislation is well overdue. The proposal suggests that the current system should be a ‘pathway’ that aims to give greater certainty to intended parents, and to give the child a greater degree of stability from the moment it’s born. Other proposals include:
- The creation of a new Regulator to ensure surrogacy organisations operate within the new pathway system
- The removal of the requirement of a genetic link between the intended parents and the child where medically necessary
- The creation of a national register so that surrogate children can access information about their origins, in much the same way as adopted children can do genetic searches on their background.
The Law Commission has held onto the fact that surrogacy organisations (those operations that organise surrogacy arrangements) should remain as non-profit operations to prevent any kind of ‘wombs for hire’ industry. While surrogate mothers can be paid a certain amount in ‘reasonable expenses’ at the moment, the law is very vague when it comes to defining exactly what a ‘reasonable amount’ actually is. Part of the consultation process would be to address this murky topic and provide a greater degree of clarity for both intended parents and surrogates as to how much money should change hands.
Bringing up a family is a tough business. Surrogacy adds a whole new level of complication to what is an already-challenging part of everyday life – bringing children into the world. Until the Law Commission’s findings are in, the current 1980s legislation remains in place, and the issue of surrogacy is still very much a background topic in family law. However, with more and more couples choosing surrogacy for whatever reason, it is an issue that has to be addressed to bring the legislation up to date.
If you are considering surrogacy but are unsure of your rights as either an intended parent or a potential surrogate mother, our advice is to talk to a specialist in family law, who can help you navigate your way through this sensitive and emotive issue.
Email Philip Elliott
Email Tharshani Siva
Family eBrief 18 June 2019