In recent years, numerous celebrities including Paris Hilton, Rebel Wilson and Khloe Kardashian have welcomed babies into their lives via surrogacy. Whilst once seen as the preserve of the rich and famous, more people are turning to surrogacy as a means of becoming parents.
Considering the increased use of surrogacy, it is important to consider whether the current law, which dates back to the 1980s, still meets parties’ needs or whether this is now outdated.
What is surrogacy?
Surrogacy is the process by which a woman carries and births a child for the intended parents. There are two types of surrogacy: –
- Traditional surrogacy sees the surrogate using her own egg fertilised with the intended father’s sperm, or
- Gestational surrogacy which sees the surrogate carrying the intended parent’s genetic child, conceived through IVF.
What is the current law?
In the UK, surrogacy is viewed as a truly altruistic act, meaning parties should not enter surrogacy arrangements for commercial gain.
Under the current law, within England and Wales, the surrogate will always be the child’s legal parent at birth. Further, if the surrogate is married or in a civil partnership that person will automatically become the child’s second parent, even if there is no genetic link, as with gestational surrogacy.
If the surrogate is unmarried, it is possible for one of the intended parents to be named as the child’s second legal parent.
For the intended parents to become their child’s legal parent, they will need to make an application to the Court for a Parental Order to reassign legal parentage to them, within 6 months of the child’s birth.
What are the problems with this?
Surrogacy laws, as they are currently, do not provide intended parents nor surrogates with sufficient legal protection. In the UK, surrogacy agreements are unenforceable and there is no scrutiny of arrangements until after the child is born and an application has been made to the Court.
As outlined above, intended parents are not the legal parent of the child unless and until a Parental Order is made. As a result of this, intended parents cannot make any decisions in respect of their child, including decisions relating to medical treatment. These decisions must be made by the surrogate and their spouse/civil partner who are not caring for or raising the child.
The current law relating to payments made by intended parents to a surrogate lacks clarity. There is no definition of what payments may be paid to surrogates as “expenses reasonably incurred”.
There are also knock on effects in respect of other areas of law such as employment law which were not developed with surrogacy in mind.
Proposed Changes
The Law Commission released proposed amendments to surrogacy laws in March 2023. These proposed amendments would make key changes to the current regime, including allowing for intended parents to be recognised as the child’s legal parents from birth. The other key proposals are: –
- 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 is protected.
- Reforms to the law governing payments that intended parents make to a surrogate to provide clarity, transparency and an effective means of enforcing limitations to guard against the risk of exploitation.
- Creation of regulated bodies, called Regulated Surrogacy Organisations, who will oversee agreements as well as provide support to the surrogate and intended parents.
- Reforms to the application process for Parental Orders, to include provision for the Court to make a Parental Order without the consent of the surrogate, provided the child’s welfare requires this.
- To create a Surrogacy Register to allow those born of surrogacy agreements to access information about their origins.
- Improved employment rights to intended parents and surrogates.
- Some changes to nationality and immigration are used for those who have a child through an overseas surrogacy arrangement.
Whilst these proposals were made in March 2023, no changes have been made to the current surrogacy laws. As such, if you are considering exploring expanding your family through a surrogacy arrangement, it is imperative that you seek legal advice at an early stage. The family team at Swinburne Maddison would be more than happy to help you navigate these issues. please do not hesitate to contact us on 0191 384 2441.
