Leading legal expert, Andrew Spearman, comments on the Report by the Law Commission of England & Wales and the Scottish Law Commission, released on 29 March 2023:
These proposals for the reform for surrogacy law in the UK have been long awaited; as the summary reiterates the, “current governing surrogacy does not work in the best interests of any of the people involved”. These proposed reforms are drastically needed for everyone in order to bring greater certainty surrogacy law, but also to reflect the reality of modern surrogacy in the UK.
Current state of the law
I have long been critical of the current provisions in English law and the unnecessarily cumbersome system that intend parents must traverse in order to achieve legal recognition of parenthood. Couples who are faced with their own infertility are then faced by a small mountain of legal paperwork and a system designed in the 80s to specifically hinder their journey to parenthood.
The issues currently faced in family law include the absence of legal parenthood for the intended parents until the Parental Order is granted, despite the child usually being cared for by the intended parents and the parties joint intention from the start. The law fails to reflect the reality for these children and places hurdles in their way, such as not always providing them with parental responsibility for their child.
The law also provides no opportunity for any scrutiny of the surrogacy agreements until the child is born and a parental order is applied for, essentially presenting the agreement as part of the fait accompli. Part of those agreements deal with the thorny issue of payments and, again, the law is exceptionally vague on what is an “expense reasonably incurred”.
The above issues and the absence of certainty for intended parents is frequently cited as a driving force for intended parents travelling abroad to undertake surrogacy, in places where they obtain recognition automatically there. The fear of a surrogate not providing her consent, however remote that chance, also drives intended parents abroad because the court cannot dispense with that consent, even if the reason and outcome are not in the child’s best interest.
The Report is rightly critical of some jurisdictions intended parents are forced to go to, and they raise particular concerns about the potential exploitation of women and children. There is no uniformity or international recognition of these processes.
The Proposed Solution?
The recommendations are extremely welcome therefore in addressing these points:
If the New Pathway Conditions are met, then intended parents will be entitled to be recognised as legal parents from birth.
Those who go abroad will have an easier immigration pathway to return to the UK with the child;
The spouse or civil partner of the surrogate will no longer be automatically the legal parent of a child born to the surrogate, whether born in the UK or abroad;
The creation of a Surrogacy Register to hold important information about a child and their origins;
The creation of discrete categories of payments which are permitted;
Pre-conception safeguards to protect the interests of all participants before the event
Consent is inferred rather than needing to be obtained, but it can still be withdrawn by the surrogate up to 6 weeks after birth. However, the court is now able to still make the order if it is in the best interests of the child, as can be done in adoption proceedings at the moment when the court is satisfied that nothing else will suffice.
The New Pathway Conditions
The New Pathway has two main strands: first is the Eligibility Criteria to enter the pathway, and then the Surrogacy Agreement Safeguards to ensure the parties are protected and supported in equal measure. The formal structure of these documents and the agreement reached will greatly benefit from the oversight provided in the proposals.
The Eligibility Criteria
The crux of the ‘New Pathway’ is for intended parents to meet the Eligibility Criteria to qualify for this recognition as legal parents from birth and appear sensible and logical to the outside observer:
The surrogate must be over 21 – this is not currently the law, but may reflect the views and concerns of organisations about the risks of pregnancy and exploitation of the young;
The intended parents must be over 18, which is the current law too;
There must be a genetic link to the child – there had been hope that this would be relaxed and allow ‘double donation’ for individuals or both people in a couple are unable to conceive.
Couples must be married, in a civil partnership or an enduring relationship, which is the current law and has been stretched considerably in case law to include divorcing couples, platonic relationships and those who live in separate houses.
One of the parties must have a connection to the UK at the time of the surrogacy arrangement and when the child is born. This is an advance from the current law which specifically requires the domicile of one intended parent to be in the United Kingdom.
Surrogacy Agreement Safeguards
The Report recommends a number of pragmatic safeguards to ensure the surrogacy arrangement as a whole is appropriate for modern surrogacy. The natural route chosen for this regulation is for a legal framework to be set out and enforced in the surrogacy agreements reached by the intended parents and surrogate. These include:
An insistence on a written surrogacy contract, along with a more formal ‘Regulated Surrogacy Statement’. While most intended parents see the benefit, at the moment a surrogacy agreement is occasionally overlooked or undertaken in haste resulting in an incoherent document that helps no one. A formal document will codify the intentions of the parties and the formal requirements.
A pre-conception welfare assessment undertaken by the parties. It will be interesting to see how this is implemented and who is responsible for that assessment.
Each party should obtain independent legal advice. At the moment it is optional, but strongly recommended. While it might be considered additional costs for an already expensive process, the creation of a child and the transfer of legal parenthood is one of the biggest and important aspects of family life which has legal implication.
Implication counselling is already common practice for those going through a clinic and is strongly supported by most professionals in the sector as a critical part of the journey too.
Medical screening and DBS for any party or adult living with the intended parents.
Perhaps the biggest reform is the creation and oversight requirements for a Regulated Surrogacy Organisation for every surrogacy agreement enters into the UK.
The New Regulated Surrogacy Organisations (“RSO”)
The RSO will be the primary resource for people undertaking surrogacy and will provide the backbone of surrogacy journeys. The current not-for-profit and charitable structure will remain, but they will now be the linchpin to confirm whether the surrogacy agreement meets the Eligibility Criteria and become regulated by the Human Fertilisation and Embryology Authority, with duties to disclose information to the Authority as part of the surrogacy journey.
These organisations already undertake the lion’s share of support for the sector and will no doubt rise to the challenge. Regulation is a necessary part of bringing reform to the sector; it lends credibility and security to those who receive their services and gives confidence. It does come at a financial cost to them though, and it is likely this will ultimately be passed onto the intended parents and make the process more expensive.
Permitted Payments & Mandatory Payments
Where the current law allows for ‘expenses reasonably incurred’, I have frequently had the difficult task of advising clients on what this can include. It is a welcome read in the Report to see the proposed categories of expenses which are going to be permitted (with some wriggle room) and those which are clearly prohibited in law because they advance commercial surrogacy instead. Some of these are ‘mandatory’, such as insurance for the surrogate, and others are permitted, such as pregnancy expenses and travel. These are detailed more below.
It is interesting to note the Report recommends the payments are not paid on a monthly basis but against actual costs incurred, although a ‘float’ is provided to ensure she can draw upon it for upcoming or regular expenses. This way she is not out of pocket, but the sum is not paid akin to a monthly stipend.
The payments are not surprising to anyone who considers the reality of a surrogacy journey and codifies the principle goal that a surrogate should not be left ‘out of pocket’, while assisting in clarifying those parts which could be more ‘grey’, such as gifts. Those permitted categories are:
Insurance for the surrogate;
Costs incurred as part of the safeguarding and screening process for the New Pathway;
Travel and accommodation costs for the surrogate linked to the surrogacy;
Pregnancy related items, such as maternity clothing;
Medical and wellbeing costs;
Lost earnings and lost employment related potential earnings;
Costs of maintaining contact with the surrogate, intended parents and the child after birth;
Additional dietary requirements during the birth;
Costs of domestic support that the surrogate would ordinarily undertake;
Costs related to the decision to enter into a surrogacy journey together;
A gift of a modest recuperative holiday costs; and
Modest gifts to the surrogate.
Other than the final two, once these costs are set in the agreement and incurred, the surrogate will be permitted to enforce these payments against the intended parent.
Conversely, the structure now could be criticised as being more restrictive for intended parents and surrogates to agree on their expenses. The draft Bill seeks to enshrine the court’s ability to approve other expenses which have been paid, but is clear in the language that the court must consider the principle that a surrogate must not be out of pocket or in profit from the journey.
Death of an Intended Parent Prior to Birth
The current law is certainly far from perfect in the circumstances where one of the intended parents sadly dies before the birth. There have been two notable cases dealing with this and both the court and the submissions in those cases highlighted the precarious situation this left the family. The draft Bill seeks to deal with this in a sequence of provisions, but criticism can be levelled at it for ignoring the joint intention of all the parties on the New Pathway or what happens in a heteronormative pregnancy.
For example, if one intended parent dies before the birth then the survivor will still become the legal parent of the child born. However, it appears from the proposals the survivor will need to make an application to the court to ensure the deceased is recognised as a legal parent too.
Conclusions
The new Report also provides a draft Bill for Parliament to consider implementing those recommendations and the ‘devil is in the detail’. It is a shame that the Recommendations do not include arrangements for international surrogacy, and even suggests we could not regulate it effectively, but it has at least shored up the provisions for the parental order process to ensure it is not left behind either.
While it is also a shame that double-donation was dropped from the Report, despite being in the consultation, it is considered by some as a more controversial area and is something that can still be raised in the committee stage for Parliament to consider.
It is a long awaited report, but very welcome. Now onto the Parliamentary stage, I can only hope they can keep the momentum going.
