Colin Rogerson, Head of Fertility Law at Mills & Reeve shares his initial views on the Law Commission’s final report for surrogacy law reform in the UK.
The Law Commission of England and Wales and the Scottish Law Commission published their eagerly awaited final joint report and draft bill on 29 March 2023.
Why do we need surrogacy law reform in the UK?
Existing surrogacy law in the UK is outdated and, whilst largely contained in statute, very little Parliamentary time has been given to debating how our law should operate. The law has, on the whole, evolved piecemeal on a case by case basis.
The surrogate and, if married, her spouse/civil partner are the legal parents at birth. Intended parents of children born through surrogacy can apply to the Family Court for a parental order to secure their legal parentage. This is a post birth process and can take up to a year. During this stage, the child is often in a legal limbo where they are living with their intended parents but the law doesn’t recognise them as such.
The statute which regulates surrogacy in the UK is the Surrogacy Arrangements Act 1985. When it was enacted, it was one of the first statutes in the world to seek to deal with surrogacy arrangements. In 1985, however, surrogacy was very much in its infancy and Parliament was legislating out of concern over what issues might arise from surrogacy as opposed to an evidence based approach.
In the last ten years, surrogacy has become increasingly popular as a means for people otherwise unable to conceive a child, to have a child that will usually be genetically related to at least one of them. Around 400 parental orders are currently made each year by the Family Court in England and Wales. Approximately half of these relate to children born through domestic surrogacy in England with the rest born as a result of surrogacy arrangements overseas.
Current UK law on surrogacy makes it difficult – though not impossible – for surrogacy to take place in the UK. Surrogacy arrangements are unenforceable, which was intended to ensure that surrogates could not be “sued” if they did not hand the baby over. This concern often springs to mind when people think of surrogacy – but the reality is that in all the years since the Surrogacy Arrangements Act 1985 was enacted, there have only been a handful of cases where this issue has arisen.
Criminal offences also exist which serve to prevent third parties from brokering surrogacy agreements for a fee, and advertising for or advertising a willingness to be a surrogate is technically prohibited (although nobody has been prosecuted). Surrogacy organisations which operate lawfully in the UK must do so on a not for profit basis and finding a surrogate can be difficult.
Finally, UK surrogacy follows an altruistic model: UK surrogates are not meant to receive payments in excess of reimbursement of reasonable expenses. There is an ongoing debate amongst those campaigning for surrogacy reform about whether surrogates should be permitted to receive payments beyond expenses reasonably incurred.
There are a number of important proposals to reform surrogacy (although this is mostly going to apply to people undertaking UK surrogacy).
A new “pathway” for UK surrogacy
- Those undertaking surrogacy through non-profit organisations licensed and regulated by the HFEA as Regulated Surrogacy Organisations will potentially have a route to legal parenthood from birth without the need for a court application.
- There will be pre-conception steps which include screening, counselling, independent legal advice and a written agreement signed off by a Regulated Surrogacy Organisation.
- This pathway will only be available where the surrogate consents. She may withdraw her consent during the pregnancy or up to 6 weeks post birth in order to be considered a legal parent. 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.
- The types of payment that can be made have been specified. Compensation and general living expenses (such as rent or mortgage payments) are prohibited. The Law Commission suggests that this prohibition is regulated by requiring the intended parents to make a statutory declaration post birth to the effect that they have only made payments that are permitted by law. Giving a false statutory declaration is a criminal offence.
- Parental orders will remain available for people who do not fall within the gateway and, importantly, for those undertaking surrogacy arrangements overseas.
- There are some proposals to reform the current parental order requirements – for example enabling applicant(s) who are habitually resident in this jurisdiction, but not domiciled, to apply for a parental order. Importantly the court will have the ability to make a parental order even if the surrogate does not agree provided the child’s lifelong welfare needs require it (although this would only apply to new arrangements entered into after the law came into force).
- The surrogate’s spouse or civil partner will not be considered the child’s legal parent for any purpose. Their agreement will not be required for the parental order and, in international surrogacy cases where the biological intended father is British, this will simply the issue of British citizenship for any child born through surrogacy.
- There will be a Surrogacy Register, through which the HFEA will hold information for people born through surrogacy including details of their surrogate, intended parents, whether donated gametes were used and the fertility clinic.
What does this mean in practice?
The Law Commission’s function is to make proposals as to how the law should be reformed, but it does not change the law. As such, unless this (or any future) government wishes to take up the recommendations, the law will not change.
It is not likely that any Parliamentary time will be set aside to debate surrogacy law reform any time soon and it is unlikely to be before the next general election. Campaigners for reform will no doubt be seeking commitments from both major political parties to set aside time to consider these issues in any new government.
Most of the clients we help, undertake their surrogacy arrangements overseas. We know that of parental orders made currently, around half relate to children born through surrogacy overseas. Whilst parental order statistics are the best information available to us about the extent of surrogacy, it is important to remember that parental orders are not made in respect of all children and we anticipate that intended parents of children born through domestic surrogacy in the UK will be more likely to apply for a parental order (otherwise they will not have a birth certificate which records them as parents) whereas many parents who go overseas will have a foreign birth certificate which names the intended parents as the parents.
The proposals appear to create a heavy regulation burden on Regulated Surrogacy Organisations, who will remain as non-profit organisations. It remains to be seen whether some of the existing established organisations will be able to cope with this burden. If unable to do so, this will likely reduce the number of parents who can benefit from the proposed gateway.
The mechanism through which the Law Commission proposes that payments are dealt with is troubling. The proposal is the law should set out what payments are allowed and which aren’t – broadly speaking any compensation and living expenses would not be permitted. The difficulty with prescribing what payments aren’t allowed is that the law needs to deal with the implications for those who make payments that aren’t permitted. The Law Commission’s proposed solution to this is to make the intended parents make a statutory declaration to the effect that all payments made have been in accordance with those permitted by law. It is a criminal offence to knowingly and wilfully make a false declaration and constitutes a criminal offence under the Perjury Act 1911 (liable to a fine or a term of imprisonment). If applying for a parental order, the Family Court would retain the power to authorise payments made including those which are not permitted payments. Based on the approach of the Family Courts over the past 10 years, it is unlikely that there would be any change in this approach.
The substantive reforms put forward by the Law Commission will be welcomed by those people who are fortunate to be able to find a surrogate through a Regulated Surrogacy Organisation. It is difficult to see that the proposals would have a marked impact on the number of people who are able to undertake surrogacy domestically. We anticipate that large numbers of intended parents will have no choice but to enter into surrogacy arrangements overseas due to the availability of surrogates and legal certainty for all concerned. For those undertaking surrogacy overseas, or through independent matches in the UK, the parental order route will still be a necessary hurdle.
The Law Commission has worked hard to put together detailed proposals for reform (the report is after all more than 600 pages long). Surrogacy as a family building option is not going to go away and it is better for all concerned if there is a proper regulated framework to make surrogacy as safe as possible.
However, if the Law Commission’s aim through these proposals is for more UK based parents to undertake surrogacy here in the UK rather than overseas, then this is unlikely to be achieved. In our experience, people undertake surrogacy overseas for two main reasons: the availability of surrogates and legal certainty. The impact is likely to be that many (possibly most) intended parents through surrogacy will have to enter into surrogacy arrangements abroad. There are certainly areas where reform is still needed which haven’t been addressed by the Law Commission (for example those who unable to use their own embryos would still fall outside the scope of a parental order).
About the author
Colin Rogerson, Head of Fertility Law at Mills & Reeve is recognised internationally as one of the UK’s leading surrogacy lawyers. He is a Fellow of both the Academy of Adoption and Assisted Reproductive Technology and Attorneys and International Academy of Family Lawyers. He is an executive council member of the American Bar Association Section of Family Law Assisted Reproductive Technology Committee and is regularly recognised as “the go-to lawyer in the UK for surrogacy” in the legal directories.
Our content explained
Every piece of content we create is correct on the date it’s published but please don’t rely on it as legal advice. If you’d like to speak to us about your own legal requirements, please contact one of our expert lawyers.