A government-commissioned review of the existing surrogacy laws has concluded that “intended parents of a child born to a surrogate mother should be able to get legal parenthood from the point of birth”. But what is surrogacy? What is the current Surrogacy Law in the UK? And What are the new surrogacy laws being proposed? This blog co-authored by Arooj Begum and Heather Sharp, Family Law Executive and Family Law Paralegal, hopes to give some clarity.
What is surrogacy?
Surrogacy is where a woman carries a baby for someone who is unable to conceive or carry a child themselves. There are two different types of surrogacy:
- Full surrogacy. This is when the eggs of the intended mother or a donor are used and there is therefore no genetic connection between the baby and the surrogate.
- Partial surrogacy. This involves the surrogate’s egg being fertilised with the sperm of the intended father.
Fertility clinics are not allowed to find a surrogate for the intended parents, however organisations such as Surrogacy UK may be able to provide some insight.1
What is the current law on surrogacy in the UK and do intended parents have Parental Responsibility from birth?
The current law that governs surrogacy is the Surrogacy Arrangements Act 1985, this law has remained the same for over 30 years. In addition, there is also the Human Fertilisation and Embryology Act 2008.
Currently when the child is born the surrogate is recognised as the mother (section 33 Human Fertilisation and Embryology Act 2008) of the child (whether or not she is genetically related to the child), and her name will be on the birth certificate. The spouse of the surrogate will be named as the legal father on the birth certificate. If the surrogate is not married the biological father of the child may be considered the legal father under English law but he will not necessarily have parental responsibility (PR) for the child.
The intended parents then must apply to the Court for a Parental Order (PO) to become the child’s legal parents. To be eligible to make a PO, parents must meet the criteria set out in section 54 of the Human Fertilisation and Embryology Act 2008 (“s54 criteria”). This could take months, especially if the surrogate or the intended parents change their mind.
Usually, the child will live with the intended parents during this time, legally, the intended parents are unable to make decisions regarding the child as they do not have Parental Responsibility.2 Therefore, the intended parents have no legal right to make any decisions in respect of the child. Unfortunately, this is the right of the surrogate and her spouse or civil partner, who are not caring for and raising the child. Clearly, what the current law does not do, is reflect the best interests of the child!
Therefore, international surrogacy arrangements take place mostly in countries where the intended parents are recognised as the legal parents of the child from the time of their birth and named on the child’s birth certificate.
However, there is currently no international agreement on the recognition of laws relating to surrogacy arrangements (as surrogacy is viewed differently across the world). England and Wales do not recognise the legal position in other countries and therefore any arrangements made in another country, will not be accepted in the UK. Thus, the intended parents must also make an application for a Parental Order in the UK.
Did you know France, Italy, Spain, and Germany are amongst some of the countries that deem surrogacy as being illegal?
What are the new proposals?
The Law Commission of England and Wales along with the Scottish Law Commission published their recommendations in relation to reforms surrounding surrogacy laws.
“Intended parents are to become parents of the child from birth rather than waiting months to obtain a parental order. However, this would be subject to the surrogate having the right to withdraw consent and would also involve screening and safeguards, including medical and criminal records checks, independent legal advice, and counselling.”3
Individual surrogacy agreements under the new pathway will be overseen and supported by non-profit Regulated Surrogacy Organisations (RSOs). RSOs themselves will be regulated by the Human Fertilisation and Embryology Authority (HFEA).4 Only an RSO will be able to approve a surrogacy agreement to enter the new pathway.
However, a parental order will continue to be needed for surrogacy agreements that do not follow the new pathway. A parental order application will be required in all international surrogacy arrangements, as these will not be eligible for the new pathway.
For those surrogacy agreements that continue to require a parental order in order for the intended parents to become the child’s legal parents, the surrogate’s spouse or partner will no longer be considered the second legal parent on the birth of the child and so their consent will not be required. The courts will have a specific power to enable applications to be made late (beyond six months after the birth of the child). The court will also be able to make a decision in the absence of the surrogate’s consent to the parental order, where the welfare of the child requires this.
Rules on payments – How much does surrogacy cost?
The current law states that the intended parents are only allowed to make payments which cover ‘expenses reasonably incurred’5, however the current law does not provide clarity as to what is classed as reasonable.
The new reform provides clarity over the payments the intended parents make to the surrogate. The logic behind this is to ensure that the surrogate is not left worse off as a result of the surrogacy. Permitted payments consist of things such as medical and wellbeing costs, recouping loss of earnings, travel, and pregnancy support. By putting in place a new structure regarding payments, all parties are protected against the risk of exploitation.
On average, according to a report by Surrogacy UK, surrogates usually receive around £10,000 to £15,000 however this is dependent on the circumstances of the case, e.g., if the surrogate is carrying twins.