Surrogacy: Not just for the Kardashians

As surrogate pregnancies become more familiar within mainstream society, it is important that the law surrounding surrogacies also evolves. Here are the facts so far:

Surrogacy is the practice of a woman becoming pregnant with, carrying and giving birth to a child that may or may not be genetically related to her for another family (the intended parents). Surrogacy has become a more familiar concept to us following media coverage of celebrities such as Tom Daly, Ollie Locke, Kim Kardashian and, most recently, Khloe Kardashian speaking openly about their surrogacy journeys. Although surrogacy is not a new concept, celebrity ‘endorsement’ has led to an increase in surrogate pregnancies and a societal change in attitudes towards the concept.

As cultural attitudes and awareness of such concepts evolve, the law, and those who make it, must be alert to these changes, in order to ensure that it  remains progressive and current for the societies that it serves. As an increasing number of couples turn to surrogacy in order to expand their family, the flaws in the current legislation have come under increasing scrutiny.

The existing law

The existing law in England and Wales is based around the concept of parental orders and has been the same for over 30 years. It is derived from The Surrogacy Arrangements Act 1985 and also the Human Fertilisation and Embryology Act 2008. Currently, the intended parents enter into a surrogacy agreement prior to conception, but it is the surrogate, rather than the intended parents, who is registered as the child’s legal parent following the birth. The intended parents then must apply to the court for a parental order so that they can be named as the legal parents. An appropriate official prepares a parental order report, which investigates the requirements necessary for the court to grant the order, and on this basis there will be a final parental order made at a court hearing. This process can take several months.

There are a number of clear issues with the law as it currently stands. For example, the law does not make the intended parents the legal parents of the child at birth. There is, therefore, concern that this does not serve the intentions of each of the parties who agree to use surrogacy. Further, there are issues around access to information for the surrogate-born child and a lack of safeguards and monitoring for participants in a surrogacy agreement.

Compensation

One of the issues that causes perhaps the most confusion is that surrounding how the surrogate may be recompensed. Whilst surrogacy is a legal practice in the UK, it is not possible to be a surrogate for commercial gain. Surrogates are therefore limited to claiming ‘reasonable expenses’ which are directly related to the pregnancy. Understandably, the interpretation of what constitutes a ‘reasonable expense’ is extremely hard to define. The courts have recognised the difficulties with this and retrospectively interpreted ‘reasonable expenses’ widely in cases when it has been in the child’s best interests to do so. For example in the case of Re A, B and C (UK Surrogacy expenses) (2016) EWFC 33, Ms Justice Russell considered whether the payments that had been made to the surrogates, e.g. payments for take away meals, clothes, and a cleaner, were reasonable expenses or not, and held that the majority of the payments fell into the category of “reasonable expenses” in compliance with the law

A new pathway

As a result of these problems, the Law Commission has prepared recommendations on reforming the current law that would provide a new pathway for parents looking to have a child through the surrogacy process. The report is expected in Autumn 2022, together with a draft Bill of proposed changes to the existing law. The Government will then decide whether to send the draft Bill to parliament to be implemented (assuming that the Government accepts the Law Commissions’ proposals and devotes parliamentary time to implementing them).

The proposed new pathway enables a shift in emphasis from scrutiny starting after the child is born, to before conception (including safeguarding checks and counselling) and will be accessible to anyone whose surrogacy arrangements take place entirely in the United Kingdom. After the birth of the child, the intended parents will be the legal parents and the surrogate has an “objection period” during which they must raise any of their objections or concerns. Once the objection period has passed, the intended parents will be registered officially as the legal parents of the child. The new pathway removes the requirement for a post-birth assessment, or a post-birth court hearing, to align better with the shared intentions of both the intended parents and the surrogate. It is hoped that the change will allow the intended parents to concentrate on caring for their new-born child and laying the foundations for a happy and healthy family environment.

Other proposals for change include for international surrogacy arrangements to be recognised in this jurisdiction, depending upon where the surrogacy took place. Crucially, guidance on which types of payment will be considered ”reasonable expenses” and when these should be authorised (it is suggested pre-conception) will form part of the recommendations for reform. There are a number of other proposed changes to modernise and update the current law. For example, to try to remove some of the difficulties caused by nationality and immigration issues where the surrogacy has taken place outside of England and Wales.

The Birketts view

It remains to be seen whether the Law Commission’s recommendations for reform and draft Bill will be implemented in full. Needless to say, the legal landscape surrounding surrogacy is ever-changing, and we do not yet know what it will look like in the coming months.

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 Jennifer Headon