There might be relief on the horizon for those caught in the complex issues surrounding surrogacy, after a consultation on proposed reforms around the practice has been launched by the Law Commission.

On 6th June the Law Commission launched a consultation paper “Building Families Through Surrogacy: A New Law”.

The paper sets out the myriad of difficulties with the current law surrounding Surrogacy and makes suggestions as to how to improve it. Experts have been campaigning for decades for a change in the law which derives from legislation almost 30 years old, so this consultation will be welcome news for those families considering raising a child through Surrogacy.

Responding to a 2016 debate in the House of Lords, Baroness Chisholm of Owlpen said:

“We all recognise that there are well-founded concerns about the struggle that Surrogacy policy and legislation are facing to keep pace with 21st-century attitudes and lifestyles. This legislation is based largely on thinking and debate from the 1980s. We recognise that family structures are now much more diverse than when the policy and legislation were originally developed.”

Surrogacy is the process by which a child is born to a woman who does not intend to be the child’s legal parent, but will instead carry that child for another family. The intended parents of the child will become the legal parents by obtaining a Parental Order through the courts.

According to the Ministry of Justice, in 2018 there were 367 Parental Orders granted in England and Wales. The figure has tripled in 7 years which certainly reveals an upwards trend. Unfortunately the legislation does not appear to have caught up.

The consultation summarises the problems with the current law as follows:

  • The intended parents are not the legal parents of the child at the time of birth;
  • There is no register available to surrogate-born children, so for example in later life such people cannot obtain information as to how they were conceived;
  • Prior to the Surrogacy arrangement; there is no statutory safeguard available to the intended parents to protect the proposed agreement;
  • A number of people arrange Surrogacy internationally. In these circumstances new-born children often are left in foreign countries whilst waiting to obtain a passport and be granted access into the UK;
  • Paying a fee to a surrogate is illegal in England and Wales. Compensation for a surrogate’s expenses is allowed but the law is unclear and difficult to apply.

In the Law Commission’s summary document the ‘Pathway to Legal Parenthood’ is set out, which provides details of the proposals as to how the law should change regarding Surrogacy in the UK. The main goal is that the intended parents of the child become the legal parents at the child’s birth, rather than after.

The Pathway guides the parents through a legal process from the point of identifying a woman willing to act as a surrogate; to the birth of the child; a defined period of time after the birth in which the surrogate can object to the intended parents becoming the legal parents; ending in the registration of the parents on a national Surrogacy register.

The proposals, creating a streamlined approach to Surrogacy from a very early stage, make sense in comparison to the current procedure which creates too many opportunities for problems to arise.

The consultation is open to responses until 27th September 2019. The law is therefore still some way off reform and so couples should proceed with plans for Surrogacy with great caution and with the benefit of expert legal advice from the outset.

If you would like to speak to an expert family law solicitor on the subject of Surrogacy, please contact Andrew Smith in our York office, Chris Burns and Sophie Arrowsmith in our Leeds office, and Richard Buckley in our Sheffield office.

Please note this information is provided by way of example and may not be complete and is certainly not intended to constitute legal advice. You should take bespoke advice for your circumstances.

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