Professor Nick HopkinsFor National Surrogacy Week 2018 we invited Professor Nick Hopkins, Commissioner, and Leonie James, Research Assistant, Law Commission for England and Wales, to contribute the following piece:

Becoming a parent is the greatest day in many people’s lives. But for whatever reason, sometimes surrogacy can be the only way for people to have children of their own.

Figures for how many babies are born this way in the UK are hard to come by. Estimates are that at least 300 babies are born via surrogacy every year. But the real figure could be much higher.

As society changes, surrogacy is becoming more common – that figure of 300 may be 10 times higher than it was a decade ago.  And as it becomes more common it becomes ever more important that the laws that govern surrogacy work as they should.

But, during public consultation for our 13th Programme of Law Reform, surrogacy received the highest number of responses suggesting that the law isn’t working.

As a result, in May 2018, we kicked off a law reform project jointly with the Scottish Law Commission, with backing from the Department of Health and Social Care. This is a complex area of law, and there are no quick fixes. As a result, we anticipate a three-year project, hopefully resulting in a Draft Bill.

So, what are we looking at?

The scope of our surrogacy work

We have now finalised terms of reference with the Department of Health and Social Care. These are broad, comprising the law, regulation and practice of surrogacy, including:

  • The Surrogacy Arrangements Act 1985
  • Relevant sections of the Human Fertilisation and Embryology Acts 1990 and 2008
  • Family and regulatory law and practice insofar as it is relevant to surrogacy
  • Domestic and international surrogacy arrangements
  • Information about a child’s genetic and gestational origins within the surrogacy context
  • Consequential impact on other areas of the law.

The project will consider the legal parentage of children born via surrogacy, and the regulation of surrogacy more widely.

It will take account of the rights of all involved, including the question of a child’s right to access information about their origin, and the prevention of exploitation of children and adults.

Key Issues

The project will be wide-ranging, but three issues that the Commissions have already identified are:

  • Regulation
  • Parental orders
  • International surrogacy

Regulation

The recent surrogacy guidelines produced by the Department of Health and Social Care illustrate that surrogacy is now seen by Government as a legitimate form of family building. That is unsurprising considering the wider acceptance of diverse family forms. Surrogacy can be a pathway to parenthood for couples of all sexual orientations and gender combinations.

But regulation of surrogacy is seen as being out of date and unclear. We hope to clarify the regulation of surrogacy, and bring it up to date.

Parental orders

Numerous concerns have been raised with us in connection with the procedure for obtaining a parental order, which transfers parentage from the surrogate to the intended parents.

One concern is the effect of the six-week / six-month post-birth “window of opportunity” in which the legislation requires the application for a parental order to be made.

The six-week delay can mean that the intended parents may experience difficulties in consenting to medical treatment for the baby. While if intended parents do not apply for a parental order within six months of the birth, the court is then presented with a fait accompli, of a child in a settled family with the parents, and legislation that appears to prevent the parents from obtaining a parental order.

Another issue is whether the requirement that at least one intended parent must have a genetic link to the baby should be maintained. If this requirement were removed, it would open up the question of the differences between surrogacy and adoption. Should surrogacy be differentiated by the existence of a genetic link or by the shared intention to bring a baby into the world?

There is already change in progress to allow single parents via surrogacy to apply for a parental order. A revised version of the remedial order was laid in Parliament last week by the Government.

Other aspects of the law being considered by the project include:

  • Whether it should be possible for a parental order to be made at or before birth.
  • Whether there are any circumstances in which a parental order should be made without the consent of the surrogate.

International surrogacy

International surrogacy arrangements appear to be increasingly popular but give rise to a range of concerns, including the risks of exploitation of surrogates, particularly in developing counties.

We can only make recommendations in respect of domestic law, so our project cannot solve all the concerns that arise. However, we hope that by bringing the UK law up to date our work may at least reduce some of the incentives for looking overseas.

Next steps

We are engaging with stakeholders and completing further research. We aim to publish a consultation paper in May 2019.

If you have an interest in the work, we’d encourage you to get involved with the consultation. Help us get surrogacy laws that work for the parents, the surrogate and, most importantly, the child.

For further information, visit https://www.lawcom.gov.uk/surrogacy/

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