Surrogacy Reform: Where Do We Stand Now?
9th December, 2024
On 29 March 2023 to much fanfare, certainly within the surrogacy community, the Law Commission published their final report on reform to the law surrounding surrogacy.
This had been years in the making having first been launched in December 2017, with a consultation paper published in June 2019 garnering over 680 responses, leading to the final report being published some 2 years later.
The next stage is for the government to scrutinise the report, provide their response and if it is being taken forward, for parliament to debate the Bill. This is where things have ground to a halt. On 8 November 2023 the then Parliamentary Under Secretary of State for the Department of Health and Social Care provided an interim response which didn’t say much about the report (other than acknowledging that the interim response was late) but sadly it advised that due to a lack of parliamentary time, the proposed changes would not be taken forward “at the moment”. In effect, it is being shelved for now.
Fast forward to today with a new government installed, has there been any progress? No not really. On 9 October 2024 the government was asked in a written question whether the Secretary of State for Health and Social Care would be responding to the Law Commission’s report, to which the response was “The Parliamentary Under-Secretary of State for Patient Safety, Women’s Health and Mental Health will be meeting with the Law Commission shortly to discuss its report and draft bill on surrogacy, and to inform consideration of the Government’s next steps.”.
Progress, but no definitive answer on whether the report and proposed bill will be taken forward or when this might be.
Why does it matter?
It would be fair to say that the current legislation in this area leaves much to be desired. It is a mixture of laws which create a lack of certainty and cause confusion.
One of the key issues with the current law is that whilst there are specific criteria which must be complied with before a parental order can be made, floating above all other considerations of the court, the paramount consideration is the child’s welfare. This causes conflict in the legislation which judges continue to have to grapple with. For example, the criteria clearly sets out that an application must be made to the court within 6 months of the birth of the child. If the application is made 1 day late, technically the order cannot be made and the parental order fails – the surrogate remains the legal parent and the intended parents, generally speaking, are not parents and have no rights. However could it be said that refusing to make a parental order which all parties want, simply because the application was late is the best welfare decision for the child? Probably not and in past cases the court have been willing to show some flexibility if it is in the child’s welfare to do so, such as approving orders when applications are made after the 6 month deadline.
Another areas of the current legislation which often causes concern for intended parents is the rule prohibiting any payments to be made to the surrogate other than her reasonable expenses. There is no guidance about what is reasonable, so whilst some rules of thumb have been created over time, it leaves parents questioning whether, for example, paying for a respite holiday is reasonable and if so, should it be a week in the sun or a weekend closer to home? However, even if the court does not think a particular expense is reasonable, it has the power to retrospectively authorise the payment and when looking through the lens of “welfare”, unless the payment is such that it influenced and overwhelmed the surrogate’s ability to decide whether to be a surrogate, a court will often approve the expense on a welfare consideration, which invariably is the case.
But one of the biggest criticism of the current legislation is that it is backloaded. No consideration about welfare or the potential vulnerability of those involved is undertaken until the child is born. No agreement can be enforced at any stage in the process so the only time the parties have any reassurance that the parental order will be made is once it has been approved by the court, which may be some 12 months later due to delays in cases getting to court. Before then, any party can withdraw their consent causing the parental order to fail which is often a huge concern for intended parents.
Until the parental order is made, the surrogate continues to be the legal parent with parental responsibility so she will need to make decisions for the child such as whether they undergo medical treatment. This may leave the surrogate in an uncomfortable position making decisions for the child in place of the intended parents when the surrogate had anticipated that they would play no further role in the upbringing of the child.
The law reform seeks to change this by introducing a new pathway. The process will be much more front loaded with counselling, medical checks, suitability/welfare checks and legal advice being provided prior to conception. Paying a surrogate would continue to be prohibited but guidance about the sorts of payments can be made is supposed to make this clearer.
Crucially, the surrogate and intended parents can reach an agreement before conception. If the surrogate does not withdraw her consent before birth of the child, the intended parents are automatically the parents and do not need a parental order. If she does withdraw her consent pre-birth, the surrogate would be the legal parent and the intended parents would then enter the court system and apply for a parental order. Safeguards are to be built in so that the surrogate can withdraw her consent within 6 weeks of birth. If she withdraws her consent post birth but within 6 weeks, the intended parents would still be the legal parents but the surrogate can apply for a parental order seeking to be the legal mother. Unlike under the current law, the court can dispense with the surrogate’s consent so a lack of consent does not become an absolute bar to the making of a parental order but becomes part of the welfare consideration.
Is the delay causing problems?
If/when the new legislation comes into force, it is unlikely to apply retrospectively. This means that it is unlikely that the court can dispense with the surrogate’s consent for children born prior to the change in law. This leaves a decision to be made. Should a person wait and see whether the new law comes into effect soon and delay their surrogacy journey for the greater certainty it provides, or should they continue their journey under the current legislation, which whilst not perfect is frequently used without any issues arising. It is a personal decision to be made by the parties involved but I anticipate that the draft Bill will not become law anytime soon which may be a factor in deciding whether to wait or not.
If you wish to discuss your surrogacy journey or a potential surrogacy journey with one of our specialists, please contact a member of the team.
Please note that this briefing is designed to be informative, not advisory and represents our understanding of English law and practice as at the date indicated. We would always recommend that you should seek specific guidance on any particular legal issue.
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