Proposed surrogacy reforms – rights and responsibilities of intended parents

With the Law Commissions’ proposed surrogacy reforms allowing intended parents to be recognised as legal parents from birth, how do you think this will impact the rights and responsibilities of surrogates and intended parents? Are there any risks or gaps in this new approach?

Currently under English Law a surrogate (being a woman who carries and births a baby for someone else) will be the child’s legal mother at the time of birth, even if not biologically related to the child. The intended parent(s) therefore need to apply to the court for what is known as a parental order, no sooner than six weeks after the child is born, to be recognised as the child’s legal parents and be named on the birth certificate. This can be a long process (sometimes lasting up to a year, or longer). It can result in situations where a child has been living with their intended parents from birth, but they have no right to make important decisions on behalf of that child, for example, in relation to medical treatment.

The Law Commission has proposed several reforms to surrogacy law, to try to clarify it and offer more certainty. One of the recommendations would allow the intended parents using a surrogate in England and Wales to be recognised as legal parents from the child’s birth, where all parties consent, appropriate screening is conducted, and safeguards have been put in place. This is referred to as ‘The New Pathway’. The pathway would be managed by non-profit surrogacy organisations licenced and regulated by law, eliminating the need for a court application in these circumstances.

Impact on rights and responsibilities of surrogates and intended parents

If the Law Commission’s recommendations became law, this would have an impact on the rights and responsibilities of both surrogates and intended parents, including the following:

1. The surrogate would still have the right to withdraw consent, up to six weeks after the birth, if they change their mind. However, if she did this after the birth, she would need to apply for a parental order to gain parental status instead of the intended parents. If she changes her mind before birth, then she would be recognised as the child’s legal parent.
2. The ‘new pathway’ would require parties to undergo screening and safeguards including counselling, independent legal advice and a written agreement. These measures would ensure that all parties fully understand the implications of the arrangements they are entering into. The recommendations would therefore create a right to this support, and therefore a right to give (or withhold) proper consent.
3. Intended parents being recognised as legal parents from birth, would allow them the right to make important decisions for the child immediately.

Potential risks and gaps in the Law Commission’s approach include that if the surrogate can still withdraw their consent to the intended parents becoming legal parents, up to six weeks after the birth of the child, there is still some uncertainty for intended parents, and this might still encourage them to choose to enter into foreign surrogacy agreements, which are often legally recognised and enforceable in the country where the surrogacy takes place.

In conclusion, the debate over surrogacy law reform in the UK is complex and ongoing. Given the difficulties surrounding the surrogacy process, it is important to obtain legal advice as early as possible to avoid potential issues later. The Birketts Modern Families Team are able to advise on issues beyond just family law. They can also offer guidance on various issues such as immigration, tax implications, and the leave entitlements of intended parents from their employers. If you have any questions relating to surrogacy arrangements, please contact Molly Barker or another member of the Birketts Modern Families Team.