The Government – which sponsored the review – now has six months to provide an interim response and a year to fully respond to the proposals, ‘Building Families through Surrogacy: A New Law’, alongside a draft new Surrogacy Bill.
There has been much criticism of the existing law on surrogacy, from academics, legal practitioners, the judiciary, surrogacy organisations and – importantly – from many surrogates and intended parents. The Law Commissions’ work was undertaken following calls for reform from all those groups and has taken nearly five years, including a public consultation that ran for four months in 2019. London Women’s Clinic welcomes the new proposals which should, if implemented, make the landscape for domestic surrogacy clearer, easier to understand, and a smoother process for all involved. As the Law Commissions’ joint report (p19) says:
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.”
What might change?
If the Government agrees to take the Law Commissions’ recommendations forward, then Parliament will debate the proposed Bill. But with a general election on the horizon, this could take some time!
Here, we discuss some of the key proposals and what they mean. At the bottom of the page we have included a table summarising some of the main potential changes that would occur, should the Bill be passed into law.
A new ‘pathway to parenthood’
Under the current law, the surrogate is the legal mother at birth (whether or not her egg was used) and, if she is married or in a civil partnership, so is her spouse or partner (except in limited circumstances). If she is single, one of the intended parent(s) can sometimes be included on the birth certificate alongside her. To gain legal parenthood (and to extinguish the legal parenthood of the surrogate), the intended parent(s) must apply to the court for a parental order after the birth – a process which can take many months to complete.
This is obviously not an ideal situation – it means legal responsibility for the child rests with the surrogate, who is not the person providing the day-to-day care. Conversely, the intended parents, who are looking after the child, do not (both) have legal responsibility. This situation does not reflect what the parties intended when they entered the arrangement and is not in the best interests of the child, nor reflective of their identity. Our survey with 47 surrogates treated at LWC between 2014 and 2021 (as well as previous research here and here) shows that surrogates don’t view themselves as the mother and don’t want legal responsibility of the children they carry. Most thought the legal parents at birth should be the intended parents. There were similar findings among our survey of 61 of our intended parents.
The Law Commissions have recommended the creation of a new ‘pathway to parenthood’ which, if the required screening and safeguarding steps are completed before conception, will allow intended parents to be the legal parents from birth. These steps include health checks, criminal records checks, implications counselling, independent legal advice, a welfare of the child assessment, and a written surrogacy agreement approved by a (new) Regulated Surrogacy Organisation (see below). There will also be eligibility requirements: the intended parent(s) must be over 18 years old and either domiciled or habitually resident in the UK, and at least one parent must be genetically related to the child. The surrogate must be over 21 years old.
Obviously, the surrogate would retain full autonomy over her body while trying to conceive and while pregnant. If she withdraws consent to the agreement during pregnancy, the situation reverts to one similar to the current position: she will be the legal mother at birth, and the intended parents can apply for a parental order. If she withdraws consent after the birth (within a six-week period), there is a crucial difference – as the intended parents are the legal parents, it is the surrogate who must apply for a parental order. As in all family court applications, the court’s paramount consideration is the lifelong welfare of the child. The court would have the ability – unlike now – to recognise the surrogate’s consent if it is in the best interests of the child to do so.
New Regulated Surrogacy Organisations
There are currently four non-profit surrogacy organisations recognised by the Department of Health as having good practice; these work with many surrogates and intended parents to support them through their journeys, to educate and – in some cases – provide ‘matching’ services.
The Law Commissions propose that these surrogacy organisations – and others who might apply in future – become Regulated Surrogacy Organisations (RSOs), giving them further legitimacy as they would be licensed and regulated by the Human Fertilisation and Embryology Authority (as fertility clinics are). Under the new proposals, RSOs will be responsible for ensuring that all the ‘pathway’ conditions are met, and oversee a Regulated Surrogacy Agreement between the parties. It is to be hoped that regulation and legitimacy help to provide intended parents and surrogates with the ‘certainty’ many feel is currently lacking in the law, as the respondents to our surveys indicated.
Under the current law it is illegal to advertise for or as a surrogate, or for surrogacy support organisations to advertise their services. The proposals suggest that RSOs will be able to advertise and this – along with an education role – should encourage domestic surrogacy agreements. Our surveyed surrogates and intended parents also support this proposal. In both groups, there was little support for either surrogates or intended parents being able to advertise (i.e. that they were offering to be, or seeking, a surrogate), with greater support for the non-profit surrogacy organisations being able to do so.
What does this mean for surrogacy at LWC?
At the moment, we still have to work within the existing law, though as our in-house research has shown, we are doing this very successfully. In the nearly 10 years in which we have been offering a surrogacy service, we have worked with over 112 intended parents and over 108 surrogates on their journeys (you can see a summary of our successes up to February 2022 in this article). In 2023 we will see the birth of our 100th baby born through surrogacy.
We plan to continue to develop our surrogacy service, listening to what our surrogates and intended parents have shared in our surveys, and taking into account wider research. Because we realise the value of what the Law Commissions have proposed and know that their recommendations reflect and bolster existing good practice in surrogacy, we will ensure that surrogacies at LWC are ‘pathway compliant’ and support our surrogates and intended parents to achieve this. While intended parents will - for the immediate future - have to apply for parental orders, frontloading everything (except the Cafcass assessment for the parental order which must take place after the birth of the child) is sensible practice and will be what we recommend.
What can you do?
Alongside the Law Commissions’ report and the links provided above, this briefing paper from the Nuffield Council of Bioethics explains the current landscape of surrogacy and issues that might feed into parliamentary and public debates to come.
If you support the recommendations it is important that members of parliament who will be debating the law know that you do, and why. You can write to your MP (they like to hear personal stories that inform the debate) and also encourage them to join the All-Party Parliamentary Group on Surrogacy, which will be working to get the Bill passed.
If you wish to read further there are a few places we would recommend:
Professor Gillian Black, the Scottish Law Commissioner, wrote this piece about the proposals in BioNews (which you can subscribe to for free to keep up to date on this and other issues).
Dr Lottie Park-Morton, senior lecturer in law, has written this blog about the proposals and what they mean, and will be following the whole process of law reform.
The main surrogacy organisations all have their views on the proposals, too – you can follow them on social media or see their various blogs in response to the Law Commissions’ work at the following links:
Summary of the proposed changes