LEGAL COMMENT: Weightmans Experts Respond To Proposed Surrogacy Reforms

This week, the Law Commission published its report into proposed reforms to the surrogacy process

This week, the Law Commission published its report into proposed reforms to the surrogacy process which could see intended parents automatically recognised as legal parents from birth.

Kirsty Leedam and Rachel Lim, specialists in Children and Family Law at national law firm Weightmans, have considered the Building Families Through Surrogacy: A New Law. In summary, the report recommends:

1. The creation of a new pathway to legal parenthood for domestic surrogacy arrangements, which will allow intended parents to be legal parents from birth;
2. Requirements and safeguards for the new pathway to ensure that surrogacy is the right decision for the surrogate and intended parents, and that the welfare of the child born is protected;
3. Reforms to the law governing the payments that intended parents can make to the surrogate, to provide clarity, transparency and an effective means of enforcing limitations, and to guard against the risks of exploitation;
4. The creation of regulated bodies, called Regulated Surrogacy Organisations, who will be non-profit-making bodies regulated by the Human Fertilisation and Embryology Authority (HFEA) and will oversee agreements under the new pathway, providing important support to the surrogate and the intended parents;
5. Reforms to the parental order process, that will continue to be used for some surrogacy agreements, including provision for the court to make a parental order without the consent of the surrogate, provided the welfare of the child requires that an order be made;
6. The creation of a new Surrogacy Register to allow those born of surrogacy agreements to access information about their origins
7. Improved employment rights for intended parents. Recommendations will ensure a surrogate is treated in the same way as any woman who is pregnant and the intended parents are treated in the same way as any other person with a new child;
8. Some limited reforms and the provision of comprehensive guidance on nationality and immigration issues, to avoid unnecessary delay for those who have had a child through surrogacy overseas bringing the child to the UK.

Rachel Lim said:

"The demand for surrogacy has increased over recent years, however the law in this area has failed to keep pace. The main legislation governing surrogacy dates back to the 1980s and is no longer fit for purpose. As a consequence the Law Commission of England and Wales and the Scottish Law Commission have recommended radical reform which would mean that the intended parents would become the legal parents of the child from birth (subject to the surrogate withdrawing her consent within a set period of time).

"The recommendations are a welcome step forward to reduce the number of surrogacy agreements where a child is born and court proceedings required to secure a parental order. Surrogacy is a long process for many families, involving a lot of reflection before embarking on the journey, and anxiety during it. These new recommendations would allow much more 'advance planning' for those involved in these arrangements, rather than taking steps 'after the fact' where a court is presented with a child who has already been born and is being raised by the intended parents."

Kirsty Leedam added:

"These proposals go some way to encouraging families to seek surrogacy arrangements on home soil, rather than seeking international surrogacy arrangements abroad, and ultimately provide more certainty for all involved.

"The proposals do put an onus on the surrogate to take positive steps. She is the one carrying child, and must provide the information necessary for the Surrogacy Register. The onus also shifts as if the surrogate changes her mind, the burden is on her to apply for a parental order, rather than the intended parents.

"Whilst reform in this area is long overdue, we have yet to see whether the Government will endorse these recommendations. Certainly, in the past progress in this area and family law generally has been slow. Despite The Women and Equalities Committee putting forward several recommendations to reform the law in relation to cohabitation, the Government effectively rejected these recommendations in November 2022 and announced that they had no plans to make any changes to the law governing cohabitation. Similarly, despite the Law Commission recommending the introduction of "Qualifying nuptial agreement" as enforceable contracts in 2014, to date these recommendations have not been implemented by the Government."

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