Surrogacy reform

The law in relation to surrogacy is currently under review by the Law Commission and the Scottish Law Commission (referred to collectively as " the Law Commission" in this blog). The consultation closed on 11th October 2019. The review is currently at the policy development stage with a final report containing recommendations for reform of the law, and a draft Bill, to be made available in early 2022.

Surrogacy is where a woman bears a child on behalf of somebody else or a couple who intend to become the child’s parents. This is becoming increasing common, and the Law Commission reports that the number of children born this way could be ten times higher than a decade ago. The main legislation concerning surrogacy is the Surrogacy Act 1985 and the Human Fertilisation and Embryology Act 2008.

The law has not, however, kept pace with the changes in society. The Law Commission comments that "there are significant problems with the law. Currently, intended parents have to wait until the child has been born and then apply to court to become the child’s parents. The process can take many months to complete and doesn’t reflect the reality of the child’s family life, and affects the intended parents’ ability to take decisions about the child in their care".

The Law Commission has also identified that there is insufficient regulation in this area which makes it "difficult to monitor the surrogacy process and those involved in it and ensure that standards throughout the process are kept high."

It has also been noted that there is a "lack of clarity around surrogacy payments makes the laws difficult to apply in practice".

A consultation paper is now available( https://www.lawcom.gov.uk/surrogacy/). The issues above have been considered and the Law Commission has stated that the key proposals are as follows:

• Creating a new surrogacy pathway that will allow, in many cases, the intended parents to be the legal parents of the child from the moment of birth.

• Introducing specific regulation for surrogacy arrangements and safeguards such as counselling and independent legal advice. This should reduce risk of arrangements breaking down.

• Allowing international surrogacy arrangements to be recognised here, on a country-by-country basis.

We will be following the progress of this review closely. If you require advice in relation to this, or any other family or child law issue, please do not hesitate to contact us.