In recent years, surrogacy has gained traction as a legitimate and increasingly popular method of building a family. Surrogacy, where a woman becomes pregnant and gives birth to a child to be raised by another family, has seen a surge in demand across the UK. However, despite this increased demand, surrogacy laws in the UK have struggled to keep pace, often falling short in providing the necessary protection for all parties involved. Dating back in part to the 1980s, existing surrogacy laws now face the challenge of adapting to contemporary societal needs and expectations.
Recognising these issues, the Law Commission of England and Wales, along with the Scottish Law Commission, published new reforms in March 2023 to modernise these outdated surrogacy laws. These reforms introduce a new system governing surrogacy agreements, referred to as “the new pathway”.
In this article, we explore the latest surrogacy law reform and what it means for parents and surrogates.
The “New Pathway”
The “new pathway” represents a significant shift in the surrogacy law landscape in the UK. For the first time, the law introduces a route for surrogacy where the scrutiny of arrangements starts pre-conception. This new system, overseen by non-profit organisations operating under a regulatory body, provides more clarity, safeguards, and support for the child, the surrogate, and the intended parents.
Pre-Conception Steps
This pathway includes pre-conception steps such as screening, counselling, independent legal advice, and a written agreement approved by a regulated surrogacy organisation. Notably, the surrogate maintains the right to withdraw her consent during the pregnancy or up to six weeks post-birth. If she withdraws her agreement after this time, the intended parents would be the legal parents, but the surrogate could make a court application to acquire legal parentage.
Financial Aspects
The law reform also addresses the financial aspects of surrogacy. Under the new system, a clearer set of rules governs payments to surrogates, continuing the strict prohibition of “for profit” commercial surrogacy. This reform aims to prevent potential exploitation and ensures that surrogacy agreements remain within the boundaries of ethical practice. Notably, the new pathway addresses the types of payments that can be made to surrogates. The law specifies that compensation and general living expenses, such as rent or mortgage payments, are prohibited. The intended parents are required to make a statutory declaration post-birth, affirming that they have only made payments permitted by law. Any false declaration is considered a criminal offence.
Parental Orders
The reforms also address the issue of parental orders. While these will remain available for individuals who do not fall within the pathway and those undertaking surrogacy arrangements overseas, the new law introduces reforms to the existing parental order requirements. For instance, applicants who are habitually resident in the UK, but not domiciled, can now apply for a parental order. Importantly, the court retains the ability to make a parental order even if the surrogate does not agree, provided it is in the best interest of the child’s lifelong welfare needs.
Becoming Legal Parents
One of the revolutionary aspects of this new pathway is that it allows the intended parents to become the legal parents of the child from birth, subject to the surrogate’s right to withdraw her consent. This represents a substantial improvement on the current process, which can involve a complex and lengthy journey through the courts after the child has been born, sometimes leaving couples waiting up to a year before they become the legal parents of the child.
The Surrogacy Register
The recent reforms to the UK’s surrogacy laws include the introduction of a Surrogacy Register. This register is part of a broader effort to modernise the laws surrounding surrogacy.
The Surrogacy Register is intended to allow children born through surrogacy to trace their birth origins later in life. This is in line with the guiding principle of these reforms, which is to prioritise the best interests of all parties involved in surrogacy: the child, the surrogate, and the intended parents.
Conclusion
These comprehensive reforms, by providing a well-regulated domestic surrogacy regime, are designed to protect the best interests of all parties involved and dissuade UK couples from opting for international surrogacy agreements, which may carry a greater risk of exploitation of women and children.
The surrogacy law reform in the UK marks a significant step towards a more inclusive, transparent, and supportive legal framework for surrogacy.
