Surrogacy arrangements, when a woman carries and gives birth to a baby for another person or couple, are becoming increasingly common, and are recognised by the Government as a legitimate way to build a family.
However, the law on surrogacy remains rooted in the 1980s.
Recognising that there may be a need to modernise the law, the Law Commission of England and Wales and the Scottish Law Commission undertook a review of the law. Their report, published in March this year, proposed reforms to improve the law
The present law
Under the present law the surrogate mother is the child’s legal parent at birth, even if she is not genetically related to the child.
In order to become legal parents the intended parents have to apply to a court for a parental order, within six months of the child’s birth.
The surrogate mother must give consent to the making of a parental order, no earlier than six weeks after the birth of the child.
The process of obtaining a parental order can typically take six months to a year to complete, during which time the surrogate is the child’s legal parent. Obviously, this doesn’t reflect the reality of the fact that the child is living with the intended parents, and can affect their ability to make decisions about the child.
The proposed reforms
The Law Commission recommends an entirely new pathway to legal parenthood, which it believes will work better for children, surrogates and intended parents.
The new pathway will allow intended parents to be legal parents from the birth of the child, provided that certain eligibility conditions are met, instead of having to wait months to obtain a parental order.
The pathway would allow the surrogate to withdraw her consent, from the point of conception until six weeks after the birth of the child, although if she withdraws consent after the birth the intended parents will be the legal parents at birth, and she would need to apply for a parental order herself if she wished to gain legal parental status instead of the intended parents.
Surrogacy agreements under the new pathway will be overseen and supported by non-profit Regulated Surrogacy Organisations, which will in turn be regulated by the Human Fertilisation and Embryology Authority.
Clearly, these reforms would make substantial changes to the law, and would completely alter the route to legal parenthood for anyone seeking to have a child via surrogacy. Whether the proposals will be implemented is a matter for the Government, and we are currently awaiting their response to the report with great interest.
The Law Commission’s report can be found here.
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