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Consultation on UK surrogacy law begins

10 June 2019
Appeared in BioNews 1001

Recommendations to clarify UK surrogacy law have been announced by the Law Commission of England and Wales and the Scottish Law Commission.

The commissions embarked on a joint three-year review of UK surrogacy legislation in May 2018 (see BioNews 948) to address problems with current surrogacy laws, which have not been updated since the 1980s. 

'More and more people are turning to surrogacy to have a child and start their family. We, therefore, need to make sure that the process is meeting the needs of all those involved,' said Sir Nicholas Green, Chair of the Law Commission of England and Wales. 'However, the laws around surrogacy are outdated and no longer fit for purpose. We think our proposals will create a system that works for the surrogates, the parents and, most importantly, the child.'

Two of the main areas addressed in the recommendations are parental orders and expenses. Under current law, the surrogate (and her spouse or civil partner if she has one) are automatically the legal parents of any child she gives birth to. The intended parents have to obtain a parental order from a court that extinguishes the surrogate's legal obligations and establishes the intended parents as having parental responsibility for the child. However, this cannot be done for at least six weeks after the birth, meaning that the surrogate may have to get involved in signing off any medical treatment the baby needs, potentially causing anxiety for the surrogate and the parents. 

The proposals would change this, introducing a new 'pathway to parenthood' where the intended parents would be legal parents immediately after birth unless the surrogate objects. The proposed pathway would also include safeguards including counselling and independent legal advice. 

Another area the recommendations hope to clarify is expenses: commercial surrogacy is currently illegal in the UK, and the recommendations would still prohibit agencies or third parties profiting from surrogacy arrangements. Surrogates can currently be paid 'reasonable expenses' but the vague nature of this term leads to uncertainty among intended parents and surrogates about what it encompasses. The proposals aim to establish categories of acceptable payments to help parties understand what expenses are legitimate. 

The recommendations are accompanied by a public consultation, accepting responses until 27 September 2019. The consultation on the proposals will inform the final recommendations that the commissions will present to lawmakers in 2021.

The recommendations and the consultation have been welcomed by surrogacy campaigners, who have been calling for reforms (see BioNews 981)

‘PET welcomes this consultation to improve the UK’s outdated surrogacy laws...However, for the new legal situation to work for everyone, issues around affordability and ease of access to NHS treatment need to be considered too,' said Sarah Norcross, Director of the Progress Educational Trust, the charity that publishes BioNews.

Campaigners call for reforms to surrogacy laws
The Guardian |  6 June 2019
Parents should get automatic legal rights for surrogate children from birth, say law commissions
The Independent |  6 June 2019
Surrogacy reforms to improve the law for all
Law Commission |  6 June 2019
15 June 2020 - by Dr Rita D'Alton-Harrison 
Section 54 of the Human Fertilisation and Embryology Act 2008 contains the eligibility criteria for the granting of a parental order in surrogacy arrangements. It is an important section. Yet intended parents and their lawyers may be forgiven for wondering whether the section is also necessary to ensure the child's welfare.
6 April 2020 - by Louisa Ghevaert 
A legal watershed occurred on 1 April 2020 when the UK Supreme Court handed down its judgment in the case of Whittington Hospital NHS Trust v XX. In doing so, it marked an important development and intersection of medical negligence, fertility and surrogacy law in the UK...
6 April 2020 - by Jen Willows 
A UK woman has won her case in the UK Supreme Court against an NHS hospital for the cost of surrogacy in California...
28 October 2019 - by Dr Calum MacKellar 
The Law Commissions of Scotland and England and Wales' joint consultation on surrogacy reform has now closed to responses...
30 September 2019 - by Dr Catherine Hill 
Can law reform solve surrogacy's problems? That was the big question at the start of the Progress Educational Trust (PET) and the Scottish Government's joint public event in Edinburgh on 24 September 2019...
7 January 2019 - by Eleanor Mackle 
Most surrogates think they should be able to claim reasonable expenses for carrying a child for someone else, a new report from Surrogacy UK has found. They also felt that legal parenthood should rest with the intended parents immediately after birth...
17 December 2018 - by Georgia Everett 
A new study into the experience of British families who undertaking surrogacy arrangements has shed light on the reasons some seek a surrogate in the UK while others choose to go abroad...
8 May 2018 - by Antony Starza-Allen 
The Law Commission of England and Wales and the Scottish Law Commission, have announced that they will review the law around surrogacy and make recommendations for reform...
4 December 2017 - by Jen Willows 
A remedial order has been laid before Parliament which, if passed, will give single people the same rights as couples to become the legal parents of their surrogate-born children...
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