reforming surrogacy law

Arguably, the most significant recommendation within the report is to change the way in which legal parenthood is allocated following surrogacy. As explained in an earlier post, under the current legal framework, the surrogate (and her spouse, if applicable) will be the legal parents of the child at birth. In order for the intended parents to obtain legal parenthood, and to remove the surrogate’s status as the mother, a s54 parental order must be obtained through a court process.

Without re-stating too much of the detail, suffice to say that this post-birth judicial determination of parenthood is problematic. It leaves all parties in a precarious position, does not ensure the best interests of the child from birth, and often results in the court being presented with a fait accompli where, regardless of the statutory criteria, the child’s welfare necessitates the granting of a parental order.

The recommendation for a new pathway, which would allow legal parenthood to vest with the intended parents from birth, would overcome many of the criticisms of the existing process.

The new pathway

The precise process and safeguards that would need to be put in place for an arrangement to proceed down the new pathway will be explored in more detail in a later post.

However, by way of overview, the pathway will see a shift from a judicial, to administrative, process for establishing legal parenthood following a surrogacy arrangement. The intended parents and surrogate, with oversight from a Regulated Surrogacy Organisation (RSO), would undertake various pre-conception screening and safeguarding checks. Provided that these are carried out, and the RSO is satisfied with the findings, the RSO would sign the Regulated Surrogacy Agreement to confirm that the arrangement can proceed on the pathway.

Following these pre-conception checks and confirmation from the RSO, the arrangement would commence and, provided that the surrogate does not withdraw her consent, the intended parents would become the legal parents at the point of birth.

The revised parental order process

Although the new pathway would be hoped to cover most domestic surrogacy arrangements, it will inevitably not capture all arrangements. Resultantly, there would still be the necessity for a judicial determination of parenthood in particular cases. In such circumstances, the report has made recommendations to reform the existing parental order requirements.

There are three particular circumstances whereby the surrogacy arrangement would not follow the new pathway:

• International surrogacy arrangements, where the surrogate is not domiciled or habitually resident in the UK or the treatment took place outside of the UK.
• Domestic arrangements that began on the new pathway, but now require a parental order determination as a result of the surrogate exercising her right to withdraw consent.
• Domestic arrangements that operated outside of the pathway, or failed to meet any of the criteria to remain on the pathway.

A subsequent post will explore the full recommendations relating to the revised parental order process. However, an initial comparison of how the statutory criteria would differ demonstrates that there is a shift in focus from ‘hard line’ requirements towards greater acknowledgement that the child’s lifelong welfare will be the determining consideration.

Overview of requirements

There are four criteria that remain (broadly) unchanged and which would apply to both the new pathway and revised parental order process:

• The requirement for at least one intended parent to be genetically related to the child. This means that ‘double donation’, whereby neither intended parents gametes are used to create the embryo, would not be permitted. A later post will explore this in further detail.
• For intended parents that are applying as a couple, they would need to demonstrate that they are married, in a civil partnership or meet the definition of being in an ‘enduring family relationship’ as is the current requirement. This requirement would not apply to single intended parents, who are not required to demonstrate anything about their relationship status.
• At least one intended parent would need to be domiciled or habitually resident in the UK. The current requirement is for domicile, with the proposal to include the alternative of habitual residence being justified on the basis that it aligns with other family law provisions and is an easier test to apply. For arrangements under the pathway, the surrogate would also need to meet one of these tests of connection.
• The intended parents must be at least 18 years old. There is also a recommendation to impose a new age-related requirement under the pathway and revised parental order process, requiring the surrogate to be at least 21 years old.

Additionally, the requirement for the child’s home to be with the applicants would be retained for the parental order process.

Finally, the Report recommends that the requirement to apply for a parental order within 6 months of the child’s birth be retained, but with the ability for the court to dispense with the requirement based on the lifelong welfare of the child. This reflects the judicial approach we see adopted to this requirement at present.

The remaining s54 requirements, relating to the surrogate’s consent and the prohibition of payment beyond reasonable expenses, would no longer operate in the same way as gateway requirements to establishing parenthood. However, both the surrogate’s consent and payments remain important considerations in the report and draft bill. These will be examined in more detail in future posts.

A significant additional criteria that would need to be met, under both the pathway and revised parental order process, is for information relating to the surrogate and any gamete donor to be recorded. This information would subsequently be entered onto the Surrogacy Register, administered by the Human Fertilisation and Embryology Authority.

Comments

The recommendation for a new pathway to recognise intended parents as legal parents from birth is significant, and would much better reflect the intention of the parties when entering into a surrogacy arrangement. On the whole, the final recommendations align with the provisional proposals from 2019 but there are a few nuanced changes, including the time frame within which a surrogate can withdraw her consent and the precise wording of the eligibility criteria. How the intended parents would then be registered as the legal parents is less clear from the recommendations, and it will be interesting to see how the Government respond to this particular issue.

It is inevitable that there would remain the need for judicial oversight of arrangements that fall outside of the pathway, so a revision to the current parental order criteria is much needed. Some of the recommended changes, such as allowing parental orders to be granted without the surrogate’s consent or irrespective of the level of payment made to the surrogate, will better allow the court to make a decision based centrally on the welfare of the child. Other recommendations, however, can be questioned: for example, as explained in an earlier post, the 6-month time limit is all but redundant under the current legal framework. Keeping this as a statutory requirement, even with the ability to be dispensed with, seems indicative of a process of amendments as opposed to a root and branch reform.

Further consideration of the recommendations relating to allocation of legal parenthood will follow over the coming weeks.