Revolutionary Surrogacy Recommendations

What is surrogacy? 

Surrogacy is when a woman carries a baby for someone who is unable to conceive or carry a child themselves.  There are two types of surrogacy: 

1. Host/gestational surrogacy: This is when the eggs of the intended mother or a donor are used, meaning there is no genetic connection between the baby and the surrogate. This is a common surrogacy route.  
2. Full/straight/traditional surrogacy: This is when the surrogate’s egg is fertilised with the sperm of the intended father.  

Currently, the laws of surrogacy are governed by the Surrogacy Arrangements Act 1985 and the Human Fertilisation and Embryology Act 2008, however, there is an argument that these laws are no longer fit for purpose as they do not benefit the intended parents as much as they should. The Law Commission has recently proposed surrogacy reforms, particularly in relation to parental orders, which hope to bring around revolutionary changes so that intended parents could be recognised in law from birth rather than having to wait months to obtain a parental order. 

What is the law now? 

Currently, intended parents are not legal parents of a baby born through surrogacy and must apply to the Central Family Court for a Parental Order to become the legal parent and extinguish the parental rights of the surrogate mother and her spouse (if she has one). Once a parental order is made, a new birth certificate is issued with the name of the intended parents and if one intended parent is British, that child will acquire citizenship at this time, if not already.  

There are 8 requirements for making a parental order: 

1. The gametes of at least one applicant must be used to create the embryo. 
2. The two applicants must be married, in a civil partnership or living as partners in an enduring family relationship OR it must be a single applicant. 
3. The application for a parental order must be made within 6 months of the birth of the child. 
4. At the time of the application and making of the order, the child’s home must be with the applicant(s). 
5. One [or both of] the applicant(s) must be domiciled in the UK, Channel Islands or the Isle of Man. 
6. The applicant(s) must be 18 years old or over.  
7. The surrogate mother and any spouse must have freely, and with full understanding of what is involved, agreed unconditionally to the parental order at least 6 weeks after the birth unless they cannot be found or are incapable of consent.  
8. No money or other benefit, other than for expenses reasonably incurred, had been given or received by the applicant(s) unless authorised by the Court. 

Not only are there specific timescales to adhere to when applying for a parental order, but the above requirements can cause multiple difficulties for intended parents. Concerns range from the legal allocation of parental status to safeguards for all parties, including the child. The unsatisfactory allocation of legal parenthood can also incentivise some parties to enter surrogacy arrangements overseas where pre-conception intentions are reflected in the legal allocation of the legal parental status at birth. However, this has raised many ethical and practical problems.  

So what are these reforms? 

The Law Commission of England and Wales and the Scottish Law Commission have recently published their recommendations for reforms to the ‘outdated’ surrogacy laws. The report puts forward a completely new route where intended parents would become parents of the child from birth rather than waiting months to obtain a parental order, and it will be an administrative process without the need for post birth judicial involvement. This means that the intended parents and the baby can ultimately move forward with their lives as soon as the baby is born and remove that period of time where the surrogate baby is born into legal limbo.  

If a state-regulated surrogacy organisation has verified that all the requirements of the new pathway have been met and safeguards have been complied with, the legal parental status will be automatically acquired by the intended parents upon birth of the child. This will provide the child with security and certainty about their parentage from the outset. 

The above would be subject to the surrogate mother having the right to withdraw consent in the period from the treatment which leads to pregnancy until 6 weeks after the birth of the child. If the surrogate withdraws her consent, the intended parents can still apply to the court for a parental order.  

It has also been recommended that the surrogate mother’s spouse should no longer be considered the second legal parent, therefore, their consent would no longer be required.  

What are the eligibility requirements? 

1. A minimum age of 21 will be introduced for surrogates both for the new pathway and parental orders. The current minimum age of 18 for intended parents, as in the current law, will also be applied on the new pathway. 
2. At least one of the intended parents will have to provide gametes for the conception of the child (i.e they share a genetic link to that child). 
3. Information identifying the surrogate and those who contributed gametes must be recorded on a new Surrogacy Register.   
4. One or both of the intended parents must be domiciled or habitually resident in the UK, Channel Islands, or Isle of Man, both at the time of signing the Regulated Surrogacy Statement and the time the child is born on the new pathway, or at the time of applying for and making of the parental order.  
5. Parties to a surrogacy agreement should undergo health and gametes screening, take part in implications counselling, explore the nature of surrogacy, undergo criminal record checks, and take independent legal advice on the consequences of entering a surrogacy agreement. A pre-conception welfare of the child assessment will also be required. 

The new pathway will be open to both surrogacy arrangements, but it will not be possible to use anonymously donated gametes. A surrogacy agreement will only be able to be approved to access the new pathway by a Regulated Surrogacy Organisation.  

Next Steps 

If you have any queries about your rights as an intended parent or surrogate mother, please do not hesitate to get in touch with Pippa Tudor from our Family team at pippatudor@msbsolicitors.co.uk.