Building families through surrogacy: A new pathway

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Building families through surrogacy: A new pathway

08 Aug 2019

Becoming a parent is the greatest day in many people’s lives, and more and more people are turning to surrogacy to start a family, yet the laws governing surrogacy came into effect in the mid-1980s and in the view of many legal practitioners need updating.

In the UK, surrogacy is governed by the Surrogacy Arrangements Act 1985 as well as the provisions of the Human Fertilisation and Embryology Act 2008. But there are significant problems with the law as it currently stands.

Problems with the current law:

Currently, intended parents have to wait until the child has been born and then apply to court to become the child’s legal parents by way of a parental order. The process can take many months to complete, and doesn’t reflect the reality of the child’s family life. It can also have a negative effect upon the intended parents’ ability to take decisions about the child in their care.

Insufficient regulation makes it difficult to monitor the surrogacy process for those involved and does little to ensure that standards throughout the process are kept high, and both the interests of the intended parents as well as the surrogate are protected. There is also a lack of clarity around surrogacy payments. The law currently permits intended parents to pay ‘reasonable expenses’ to the surrogate, however this process is unclear and difficult to apply in practice. There is a lack of safeguarding for intended parents and the surrogate, and there is an issue with surrogate born children accessing information about how they were conceived.

Proposed reform:

The Law Commission produced a consultation paper on 6 June 2019 in which they propose that our surrogacy law should now be reformed. If the Law Commission’s recommendations are endorsed then the new legislative framework will make the process of family creation through surrogacy considerably more straightforward and help remove some of the stigma that is associated with it.

The consultation paper outlines a “new pathway to surrogacy”, which it is anticipated would be triggered in the majority of cases, with the “old” system of applying for a parental order being used in rare cases in which the new pathway wasn’t appropriate.

The key proposals are:

1. Creation of a new pathway which will in many cases enable the intended parents to be the legal parents before the child’s birth;

2. The introduction of specific regulations providing for counselling and independent legal advice to be taken, reducing the risk of an arrangement breaking down;

3. Allowing international surrogacy arrangements to be recognised in the UK, on a country to country basis, thus removing one of the potential barriers by making it easier to find a surrogate;

4. That a national surrogacy register be created, similar to that relating to donor conceived children.

The proposals contained within the consultation paper are long overdue and it is encouraging that the Law Commission have taken this major step, to now look at how surrogacy in the UK is to be developed. The changes will certainly remove some of the uncertainty and anxiety which currently exists around the surrogacy process and in doing so seek to streamline this pathway to parenthood.

The process of creating your family through surrogacy is complex, and can be emotionally trying. Seeking reliable advice and establishing a supportive relationship with your chosen legal advisor is key. If you would like support in taking the first steps in this journey, please contact the family team at Kuits.

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