Law Commission’s reforms of surrogacy law: where are we now?

In March 2023 the Law Commission published a report following a detailed review of the current regulatory regime which governs surrogacy in England and Wales. A holistic review of the legislation was considered necessary as the existing law has developed on a piecemeal basis and surrogacy law has failed to keep pace with the increased demand, meaning that the current legislation fails to provide adequate protection for all parties involved. Will implementing the recommendations into new legislation be a priority for the new Government?

Key changes in the report – the new pathway

1. The new pathway

The Law Commission report introduced the concept of a “new pathway”, intended to introduce better pre-conception screening and safeguarding checks, and allows the intended parents to become the legal parents of the child from birth (without the requirement to make an application), subject to the surrogate’s right to withdraw her consent.

The changes are likely to be an improvement the current process which often involves a complex and lengthy journey through the courts after the child has been born, resulting in some intended parents waiting for many months after the birth of the child before they become legal parents of the child. At present, the surrogate (and their spouse/civil partner) are the legal parents of the surrogate child at birth and only after the birth of the child can the intended parents then apply to the family court in England and Wales for a parental order to secure their legal parentage.

2. Payments

The Law Commission’s report also outlines clearer rules governing the payments that can be made to surrogates. Surrogacy organisations in England work strictly on a “not for profit” basis. Finding surrogates can therefore be difficult as a result given that they are not to receive payments in excess of reimbursement of “reasonable expenses”.

According to the Law Commission’s report, “for profit” commercial surrogacy should continue to be strictly prohibited in England, but the report shed some light as to what expenses might considered to be “reasonable” (for example, medical costs, life assurance and critical illness cover for the surrogate, and the costs of meeting the screening and safeguarding requirements for the new pathway), and what expenses remain out of scope (for example, payments towards rent or mortgage payments). Payments would be monitored because the intended parents would need to make a statutory declaration post birth to confirm that they have only made payments permitted by law.

3. Surrogacy register

The Law Commission report also sets out that a Surrogacy Register should be created to allow for a child born by surrogacy to trace their birth origins later in life should they wish to.

4. Reform to the requirement for the surrogate’s consent

In some cases, it will still be necessary for intended parents to apply for a parental order. It has been recommended that the court has the power to make a parental order even absent the surrogate’s consent if that is what is considered to be in a child’s best interests.

5. International surrogacy

Many intended parents embarking on a surrogacy journey choose to use a surrogate who lives in a country which permits commercial surrogacy arrangements. There has been some concern that this leads to potential for exploitation of women and children in countries where there is less regulation.

The Law Commission’s recommendations for reform seeks to persuade intended parents to opt for domestic surrogacy arrangements by improving the current regime. It was hoped that this would reduce the risk of exploitation of women and children in less well-regulated countries used in international surrogacy agreements. There has been some debate as to whether the Law Commission reports goes far enough to promote domestic surrogacy and there is some concern that large numbers of intended parents will still have little option but to enter into surrogacy agreements overseas due to the availability of surrogates in the UK and legal uncertainty. For those embarking upon an international surrogacy arrangement, it will still be necessary to apply for a parental order to formalise the arrangement following the birth of the child.

There has been some debate about the recommendations by the Law Commission since they were published last year, and concern that the proposals create too much burden on Regulated Surrogacy Organisations who will remain non-profit organisations which may, in turn, reduce the number of parents who can benefit from the proposed new pathway.

The Birketts view

Currently the proposals remain recommendations only. Changes to the law will only happen if the Law Commission’s recommendations are implemented by Parliament. Unfortunately, a reform to surrogacy law is unlikely to be a high priority for the new Government so it may be some time before any of the proposed changes above are enshrined in law.

If you are considering surrogacy or are in the process of using it and would like to discuss the legal position further, please do not hesitate to get in contact with our Modern Families Team, led by Jennifer Headon.