Surrogacy ‘revolution’ underway

The report and draft legislation, published last week, provides for a pathway to surrogacy that would be overseen by non-profit organisations, known as ‘regulated surrogacy organisations’ (RSOs) operating under the regulation of the Human Fertilisation and Embryology Authority (HFEA).

A Surrogacy Register would be created, under which children can trace their birth origins at a later stage. The pathway would encompass pre-conception screening and safeguarding requirements, medical and criminal records checks, independent legal advice and counselling.

The intended parents could become the legal parents from birth, subject to the surrogate’s right to withdraw her consent for a certain period. Currently, intended parents must apply to court for a parental order, which can take months. The Commissions recommend reform to parental orders, including allowing the court to make a parental order where the surrogate does not consent if the child’s welfare requires this.

Commercial ‘for profit’ surrogacy would continue to be banned. However, intended parents would be able to make ‘permitted payments’ for medical and wellbeing costs, to recoup lost earnings, pregnancy and travel. Payment for rent or other living expenses would not be permitted.

Law Commissioner, Professor Nick Hopkins said: ‘We need a more modern set of laws that work in the best interests of the child, surrogate, and intended parents.’

Connie Atkinson, family partner at Kingsley Napley, said the recommendations were ‘long overdue’ and ‘will provide more safeguards for surrogates as well as intended parents’.

‘Anything which streamlines the existing process and provides greater certainty and checks and balances for the parties involved must be a positive step and ultimately will benefit the children born via this route and their families.’

Natalie Sutherland, a partner specialising in surrogacy and fertility law at Burgess Mee Family Law, described the recommendations as ‘nothing short of revolutionary.

‘Surrogacy law has been stuck in a time warp, failing to keep pace with changing attitudes, scientific advances and the increase in children born through surrogacy.’

Sutherland said the recommendations remove ‘the legal limbo that surrogate babies are currently born into’ and ‘strike the correct balance’ in putting the child first and protecting both surrogate and intended parents.

However, she called for further detail on how the regulation of surrogacy agencies would work in practice, since RSOs would represent the interests of both surrogates and intended parents. She expressed disappointment the Commissions did not go ‘as far as to recommend a system whereby surrogacy arrangements conducted in certain vetted countries will be automatically recognised, much like with international adoptions from certain listed countries’. Moreover, she pointed out the Law Commissions had ignored the question of double donation where intended parents who use a donor egg and donor sperm will still be required to adopt.

Sarah Williams, modern family partner, Payne Hicks Beach, said: ‘The proposed reforms are welcome as the current law often means that couples are driven to seek international surrogacy. In some countries, this places women and children at a high risk of exploitation. 

‘By offering an approved and regulated body that will support the parties in entering a surrogacy agreement there will be more security and protection for the parties.’