Our views on the Law Commission surrogacy reform proposals

October 6, 2019
The Law Commission’s surrogacy reform consultation is a once-in-a-generation chance to get surrogacy law right.  We have spent the last few months carefully considering our response, drawing on our legal and practical experience of over 1,000 surrogacy cases, as well as our involvement in changing law and policy over the last 15 years. Our whole team has discussed the proposals and we have gathered feedback from parents and surrogates via focus group meetings and personal discussions to formulate our consultation response.

We agree with many of the Law Commission’s proposals

We love the Law Commission’s proposal for a new surrogacy pathway which will enable intended parents to be their child’s legal parents from birth without a court process.  Fundamentally, this recognises that surrogacy is about shared intention and it offers a safe, straightforward way to resolve legal parenthood.

We think the pre-conception steps which must be followed to qualify for the pathway (a written agreement, legal advice, implications counselling, medical screening and light-touch welfare checks from a regulated surrogacy organisation) are all very sensible, and a good reflection of existing best practice UK surrogacy.  We also agree that the pathway should include both traditional and gestational surrogacy, and parents conceiving through double donation.

On international surrogacy, we agree that the Secretary of State should have the power to designate certain countries or states as ‘recognised’, so that UK parents whose children are born there will be automatically recognised as legal parents in the UK too.

We agree with the proposals for regulation of UK surrogacy services, with lots of thoughts about how this might work in practice.  We agree that surrogacy introduction services in the UK should stay non-profit.  We think any HFEA licence should be specialist to surrogacy, and that regulation should be practical and inexpensive to encourage independent surrogacy groups to join.  We don’t think that unlicensed introduction services (including online groups) should be criminalised.

And finally, we agree that a national surrogacy register should be set up to safeguard information for surrogate-born people, like the current HFEA register for donor-conceived people.

However, we think the Law Commission needs to go further in some areas

In the new pathway, we think that surrogates who have followed the pre-conception steps to ensure informed consent should not have the right to object to legal parenthood post birth (although they should still have the right to apply to court about child arrangements).  Every single Brilliant Beginnings surrogate we consulted was adamant that surrogates should not be able to veto legal parenthood, and we think this goes to the essence of the law recognising and respecting surrogates.

On international surrogacy, we are concerned that there may be a long wait for the Secretary of State to designate recognised surrogacy destinations.  We therefore think that it should be possible for regulated UK surrogacy organisations to be able to certify that UK intended parents have followed all the pathway steps in an international surrogacy arrangement on a case-by-case basis so they can be recognised as legal parents in the UK automatically.  This would also mean that parents who work with a UK surrogate but go overseas for their IVF would be included in the pathway.  We also think British nationality and immigration law should be more fully amended to confer British nationality on children born to British parents automatically, and to ensure that children born overseas can be brought home without long delays.

We think there should be more substantive reform of the current parental order process for the parents through both UK and international surrogacy who are not automatically recognised as legal parents.  We think the criteria should be re-written so the focus is on shared intention, mutual consent and the welfare of the child, and we think that the court process should be significantly streamlined, so that applications can be dealt with quickly and efficiently by specialist judges and orders can wherever possible be made pre-birth.

On payments, we are pro choice

The Law Commission has not yet made any recommendations about what the law should say on payments to surrogates, but it has broken down the costs which might be paid to a surrogate into eight different categories.  We think those categories are a great piece of guidance to help parents and surrogates consider financial issues properly, but we do not think they should be used to restrict what can be paid.  We think surrogates and intended parents should be free to choose the financial arrangements that feel right to them, and that the law should promote openness and transparency about whatever is agreed.

What can you do to help?

If you have been affected by surrogacy, we would urge you to respond to the Law Commission consultation yourself, to share your experiences and your views on what the law should look like.

We have written some guidance to help people respond which includes a brief a summary of the proposals, a list of the questions, and a link to the online consultation.  You can access this here if you need help getting started.

Don’t wait too long – the consultation closes this Friday (11th October).

The UK’s leading surrogacy lawyers

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