Receiving the title of “mummy” or “daddy” is single handedly one of the greatest achievements of an individual’s life. However, the road to parenthood is not always an easy feat. With medical and scientific advancements coming on leaps and bounds, this poses certain problems for our surrogacy laws, which we are now decades old and out of date.
How is the law changing and what benefits will new UK wide law commission consultations have to those who are seriously considering the surrogacy option?
Current laws surrounding surrogacy
In a society of Kanye Wests and Kim Kardashians, it is no surprise that surrogacy is fast becoming a more popular and accepted route for those wishing to become parents, particularly those who place emphasis on becoming “genetic parents”. Our laws, unfortunately, have been unable to keep up with our fast-paced society, especially in relation to our medical advancements in fertility.
The current law is often widely misunderstood by clients and solicitors alike. Surrogacy laws in the UK date back almost 30 years. The law does, by all means, allow surrogacy, however, it does not enable the intended parents to acquire genuine legal parenthood until after the child is born. This must then be done by means of a court application for a court order known as a Parental Order.
30 years ago, when the law came into force, it was naturally assumed that at least one parent would be able to provide genetic material to create an embryo. The overriding “fertility issue” was weighted on one individual’s shoulders. The law never imagined dealing with the possibility of individual’s going through surrogacy where there would be no genetic link to the child. However, it is evident that in 2019, times and technology have radically changed.
What about surrogacy contracts?
In Scotland, Kardashian-esque surrogacy arrangements are not contractually enforceable. There are various prohibitions on commercial activities i.e. paying money for your surrogate to carry the baby. Anything beyond payment for “reasonable expenses” i.e. medical expenses for the surrogate or advertising for a surrogate are not permissible, contractually, in Scotland.
Facilitating the Need for Urgent Reform
On 17thJune 2019, the Law Commission of Scotland, England and Wales published the consultation paper “Building Families Through Surrogacy – a New Law”. The report proposes a complete overhaul of the regulatory regime governing surrogacy arrangements and the legal status of children born through surrogacy.
The consultation period ends on 27thSeptember 2019. It will inevitably take time for the responses to the consultation to be considered and for the new provisions to become law. However, assuming the Law Commission’s recommendations are taken on board then the new legal framework will make the process of family creation through surrogacy considerably easier, particularly for clients coming to their legal advisors.
A “Pathway” to Surrogacy?
The report is vast, compromising of 502 pages and proposes wide ranging and significant changes, including:
- The creation of a legal pathway to recognition of the intended parents at birth, without the requirement for the court order.
- The pathway could have various safeguards built in, including the need for parties to receive independent legal advice at the outset. This could give the right for the surrogate mother to object, post birth, to the intended parents acquiring legal parentage.
- Removing the existing requirement of a “genetic link” between the intended parents and the child in limited circumstances where medically necessary
- Introduction of specific regulations providing for counselling and independent legal advice to be taken, reducing the risk of an arrangement breaking down
- Allowing international surrogacy arrangements to be recognized in the UK, on a country to country basis
- A national surrogacy register to be created similar to that relating to donor conceived children
The proposals contained within the Consultation Paper are long overdue and, in our view, with streamline the process for clients, removing some of the uncertainty around the surrogacy process in its current form.
The process of having and creating a family through surrogacy is complex and can be emotionally exhausting. Seeking reliable advice and establishing a strong and supportive relationship with your chosen legal advisor is extremely important and one which cannot be recommended enough.