Draft reforms from the Law Commission of England and Wales and the Scottish Law Commission published in March aim to bring Britain’s “outdated” surrogacy laws into line with today’s demand for treatment and for protection of all parties involved.
Figures from the fertility regulator, the HFEA, and from our own clinical practice here at London Women’s Clinic, confirm that the use of surrogacy has increased dramatically in recent years, yet despite this increasing demand Britain’s surrogacy laws have failed to keep pace. A review of our own surrogacy treatments at London Women’s Clinic clearly showed that both the number of surrogacy treatments and the proportion of male same-sex couples using them increased steadily over the past seven years. The new proposals aim to update the surrogacy laws to recognise these changes and ensure that patients making surrogacy arrangements have a better protected and more efficient course of treatment, that arrangements remain altruistic and not commercial, and notably that the intended parents of a child born in a formally registered arrangement will be recognised as legal parents immediately at birth.
Figure 1. Changes in social demographic groups undertaking embryo transfer to a surrogate over time. IP = intended parent.
The proposals are based on four recommendations:
* A pathway to parenthood in which the checks and balances necessary to ensure regulatory compliance are completed ahead of conception with a formally registered non-profit surrogacy association. These would be known as Regulated Surrogacy Organisations and would be regulated by the HFEA. This new pathway, said the Law Commission, would be ‘the first time that the law has introduced a route for surrogacy where scrutiny of arrangements starts pre-conception’.
* Intended parents who have completed these steps prior to surrogate conception would be able to obtain a parental order transferring parental status on birth of the child from the birth mother to the intended parents. This is a big change from current legislation. Presently, intended parents cannot apply for a parental order until after the child is born and following consent of the birth mother. This process, noted the Law Commission in its post-consultation comments, may ‘take many months to complete and doesn’t reflect the reality of the child’s family life’.
* The draft regulations also propose the establishment of a Surrogacy Register, which would allow surrogate children to trace their birth origins later in life. This is consistent with the identity requirements currently in place for children conceived with donor sperm, eggs or embryos.
* Finally, the draft seeks to encourage domestic treatment through the statutory involvement of UK-based non-profit organisations. This would not only ensure screening and safeguarding in British arrangements but also discourage use of commercial arrangements involving surrogates and egg donors sometimes found overseas. The draft legislation also outlines a clear set of rules governing the payments which are allowed to be made to surrogates (restricted to ‘reasonable expenses’); thus, ‘for profit’ commercial surrogacy would continue to be strictly prohibited. The proposed reforms, says the Law Commission, are aimed to dissuade UK couples from opting for international surrogacy agreements, ‘which can bring a greater risk of exploitation of women and children’. The draft, however, recognises that intended parents may seek arrangements overseas but, to be recognised as the legal parents in the UK, a parental order application will still be needed when the baby is brought to the UK.
Dr Kamal Ahuja, Scientific and Managing Director at London Women's Clinic, London Egg Bank and London Sperm Bank.
“The proportion of same-sex male couples accessing surrogacy is a major contributor to growth in surrogacy in the UK. Frozen/warmed oocytes rather than fresh oocytes are increasingly used in surrogacy cycles”
The Law Commission’s overall aim to ensure protection of the child through greater safeguarding is welcomed by London Women’s Clinic. Its scientific and managing director, Dr Kamal Ahuja, said: ‘We are now one of Britain’s leading surrogacy centres and our aim has always been to ensure a smooth course of treatment for our surrogates, egg donors and intended parents. The proposed legal reforms will help make this process even smoother and help the ever-increasing number of same-sex and heterosexual couples now turning to surrogacy and donor eggs in their hopes for a family.’
Professor Nick Hopkins, Family Law Commissioner at the Law Commission, underlined these views, saying:’ ‘By introducing a new regulatory route with greater legal certainty, transparency and safeguards against exploitation, we can ensure that we have an effective regime for surrogacy agreements that places the interests of the child at their heart.’
The Law Commission has also presented its recommended reforms in a ‘draft bill’, which will require the approval of Parliament before becoming law.
London Women's Clinic and partner clinic London Egg Bank, will proudly continue to support patients through their surrogacy journey, just as we did with Mark and Nick - a same-sex couple who visited us in 2018. Read their story.