The Law Commission of England and Wales and the Scottish Law Commission have today published their report and draft legislation setting out their recommendations to improve surrogacy law, which many family law practitioners regard as outdated. The current law regulating surrogacy is set out in the Surrogacy Arrangements Act 1985 and certain clauses in the Human Fertilisation and Embryology Act 2008. The rate of surrogacy has significantly increased and the law needs to keep pace.
One of the key issues with the law as it stands is the process by which the intended parents become the legal parents of the child. At present, the intended parents have to wait until the child has been born before they can make an application for a parental order. This process can take 6-12 months to complete and during that time the surrogate remains the legal parent of the child. This can be very unsettling for the intended parents who have the child living with them but have no status to make decisions about the child, for example about necessary medical treatment. This fails to reflect the true reality of where the child has its home and is unnecessarily destabilising for the new family.
Following a review process, the Law Commission has set out a new pathway designed to give all parties involved in surrogacy greater clarity, support and improved safeguards to make the surrogacy journey better for those involved. The process would begin pre-conception and involve more rigorous safeguarding (medical and criminal checks). The proposals provide that if safeguards are met, then the intended parents will become the legal parents from birth rather than having to make an application post-birth for a parental order. This remains subject to the surrogate’s right to withdraw consent within the six-week period after the birth. The proposals also include a Surrogacy Register enabling children to find out details of their conception when they are older.
The proposed reforms are welcome as the current law often means that couples are driven to seek international surrogacy. In some countries, this places women and children at a high risk of exploitation. By offering an approved and regulated body that will support the parties in entering a surrogacy agreement there will be more security and protection for the parties.
The proposed new rules will also offer greater clarity on the thorny issue of payments to surrogates. Whilst commercial surrogacy will remain illegal, the rules will clearly set out what payments intended parents are permitted to make to the surrogate. These will include travel costs, pregnancy support, medical costs, wellbeing costs, and lost earnings. Surrogacy will remain an altruistic process.
It now remains to be seen whether the Government will implement the recommendations of the Commission.
 Building Families Through Surrogacy: A New Law