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New surrogacy law proposed
Reforms based on best interests of the child
A new pathway to surrogacy is recommended today by the law reform bodies that advise ministers in England, Wales and Scotland. If the proposals are implemented, intended parents who enter into arrangements with surrogates would be recognised as parents as soon as their children are born. Under the current law, a single intended parent or two intended parents must wait months — typically six months to a year — for the court to recognise their status by granting a parental order.
To provide greater support and protection for all concerned, the new pathway would involve screening and safeguarding checks before conception. New regulated surrogacy organisations would act as gatekeepers to the new pathway. These arrangements would allow for scrutiny of the proposed surrogacy agreement at an early stage rather than — as happens now — months after the child is born.
The surrogate would have the right to withdraw her consent to a surrogacy agreement during the pregnancy and for up to six weeks after birth. If she withdraws consent before birth, the intended parents could apply for a parental order. If the surrogate withdraws consent after birth but within six weeks, she could apply for a parental order. A court would then decide what to do. The paramount consideration for the court when deciding whether or not to make a parental order is the child’s lifelong welfare.
Altruistic not commercial
Under the reforms, surrogacy would continue to be altruistic rather than commercial. Intended parents who pay surrogates more money than the law permits would face civil penalties. Payments could be made to reimburse the surrogate for costs she incurs arising from the surrogate pregnancy but payments for carrying the child and living expenses would be prohibited. Today’s report recommends that intended parents should be able to make “modest gifts” to the surrogate and pay for her and her family to enjoy a “recuperative holiday”.
The proposals are designed to deter intended parents from seeking surrogacy agreements abroad — which can lead to exploitation of women — by making domestic arrangements a more attractive option. But a ban on international arrangements has been rejected as not being in the best interests of the child.
A register would be kept so that people born to surrogates could find out about their origins.
How it works
Surrogacy is an option for people who are unable to carry a foetus to term or deliver a baby. The reasons for this will relate to sex or health. So intended parents who enter into surrogacy agreements belong to one of two groups:
opposite-sex couples, same-sex female couples or single women who are unable to carry a foetus to term
same-sex male couples or single men
Traditional surrogacy — where the surrogate uses her own egg — has long-standing historical origins. In the past, conception happened through sexual intercourse. Now, however, surrogacy requires the child to be conceived through artificial insemination.
The development of in-vitro fertilisation in the 1970s enabled gestational surrogacy agreements — where the surrogate’s own egg is not used.
Today’s report says:
Collectively, our recommendations ensure that surrogacy continues to operate in the UK on an altruistic rather than a commercial basis.
Regulated surrogacy organisations will be required to act on a non-profit-making basis and surrogacy agreements will not be enforceable. A woman who becomes a surrogate should be no better or worse off financially from doing so.
Taken together, our recommendations for a reformed surrogacy law respect the intentions of all parties, safeguard against exploitation and place the best interests of the child at their heart.
The proposals are published jointly by the Law Commission of England and Wales and the Law Commission of Scotland. The Northern Ireland Law Commission has not been in operation since 2015 because of “budgetary pressures within the Department of Justice”. But it’s possible the reforms could be extended to Northern Ireland if, as seems likely, they are accepted by the UK government and put before parliament.
The proposals are unusually well advanced. Published today are:
a core report (89 pages) intended for a wide audience
a full report (617 pages) intended to be authoritative
draft explanatory notes for the draft bill
Commenting on today’s proposals, Professor Nick Hopkins, family law commissioner at the Law Commission, said:
The use of surrogacy to form a family has increased in recent years, but our decades-old laws are outdated and not fit for purpose. Under current law, surrogacy agreements are often a complex and stressful process for all involved.
We need a more modern set of laws that work in the best interests of the child, surrogate and intended parents. Our reforms will ensure that surrogacy agreements are well-regulated, with support and security built into the system from the very beginning.
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.
I am a non-executive member of the Law Commission board but I have no involvement in its recommendations.
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The justice secretary Dominic Raab will be publishing a Victims and Justice Bill today. Rather than relying on the government’s summary, I shall analyse the bill once I have had a chance to read it.