reforming surrogacy law

Today, the Law Commission of England and Wales and Scottish Law Commission released their Full Report and Draft Bill, along with supporting documents.  The long-awaited report is very much welcomed, but does not mean that law reform is imminent.  It is now in the hands of the Government to decide whether to take the recommendations forward and put the Draft Bill onto the legislative agenda.  Alongside the Government, key stakeholders and interested parties will also be taking the time to review the final recommendations. 

Taken from the Core Report, the Law Commissions view that their recommendations:

…provide for a comprehensive surrogacy law that is reflective of a scheme in which surrogacy is properly supported by the law. Our recommendations provide much greater certainty to surrogates and intended parents and operate in the best interests of children born through surrogacy. Importantly, they do so without altering the fundamental ethos within which surrogacy takes place, based on “altruistic” rather than “commercial” principles: RSOs will be required to be non-profitmaking bodies; our recommendations on payments ensure that women are not paid for carrying a baby for the intended parents; and surrogacy agreements are not contracts enforceable by the parties against each other.

Building families through surrogacy: a new law (Volume I: Core Report), page 19.

There appear to be two underpinning aims of the recommendations.  First, the necessity for any law reform to meet the interests and needs of the parties involved: the surrogate, the intended parents and the resulting children.  At times, these interests may be in conflict and therefore the recommendations have had to strike a careful balance.  Secondly, the retention of surrogacy in England & Wales and Scotland operating on an altruistic basis.  Whilst the Report notes that the distinction between ‘altruistic’ and ‘commercial’ surrogacy is sometimes unhelpful, it nonetheless frames the recommendations around a desire to prevent surrogacy from operating on a commercial basis.

The key recommendations

From an initial reading of the reports, it is possible to identify some of the key recommendations:

• Creating a new pathway to parenthood whereby, provided that appropriate safeguards are met, intended parents can become the legal parents from the point of birth.
• Reforming the parental order process for individuals who engage with cross-border surrogacy, are not eligible under the new pathway, or in instances where the surrogate withdraws her consent.
• Establishing regulated surrogacy organisations, overseen by the Human Fertilisation and Embryology Authority (HFEA),to manage the surrogacy arrangement and its progression through the pathway.
• Creating a surrogacy register, maintained by the HFEA, enabling surrogate-born individuals to access information relating to the surrogacy arrangement.
• Providing clarification on the types of payments that can be made by the intended parents to the surrogate, as well as the types of payments that are prohibited.  The report also makes recommendations relating to the enforcement of prohibited payments.
• Removing the absolute requirement for the surrogate’s consent to the allocation of legal parenthood to the intended parents, with the power for the court to dispense with such consent on the basis of the child’s lifelong welfare needs.
• Revising immigration rules and practices to support intended parents in bringing children born as a result of international surrogacy arrangements home to the UK more easily. 

Initial response

The recommendations are welcome, acting as a key step forward in establishing a legal framework that is supportive of surrogacy as a practice and better protects the interests of the parties involved.  Nonetheless, it is already possible to identify some of the issues that may emerge from the Report.

Many of the recommendations are broadly aligned with the provisional proposals put forward in the Consultation Paper in 2019.  However, there are some significant differences that require closer scrutiny in light of the consultation responses and the Law Commissions’ analysis.

Over the coming weeks and months, the Full Report will be analysed in greater detail to assess the extent to which the recommendations will improve the existing legal framework and overcome the issues identified in the Consultation Paper.