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    UK Surrogacy: proposals for overdue law reform

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    The Law Commission recently published their final recommendations for UK surrogacy law reform, following an extensive project that began in 2018.
    Their proposals seek to modernise UK surrogacy law, and improve support for children, surrogates, and intended parents, whilst ensuring that UK surrogacy remains an altruistic rather than a commercial endeavour. Stowe Partner and surrogacy lawyer, Liza Gatrell, explains more.
    UK Surrogacy: proposals for overdue law reform
    Following a public consultation in 2019, the Law Commission released its recommendations for a comprehensive overhaul of UK surrogacy laws last week. The recommendations include a draft bill that, if approved by Parliament, could become law.
    The use of surrogacy arrangements for family building has increased in recent years but UK laws have not kept pace, rendering them outdated and not fit for purpose. This causes an added layer of complexity and stress to what should be a happy time.
    What is surrogacy?
    Surrogacy is where a woman carries and gives birth to a child for the intended parents. The surrogacy can be traditional, whereby the surrogate also donates her egg, or gestational, where she has no genetic link to the child.
    What is wrong with current surrogacy law?
    Under the current UK surrogacy law, the surrogate will always be the child’s legal parent and if she is married her husband or wife will automatically be the second legal parent. This is the case even if the surrogate has no genetic links to the child. If the surrogate is unmarried then it is possible for one of the intended parents to be the second legal parent. The intended parents must then make an application to court within 6 months of the child’s birth for a parental order, which re-assigns the legal parentage to the intended parents.
    Why is change needed to UK surrogacy law?
    Existing surrogacy laws, which date back to the 1980s, frequently fall short of providing adequate protection for the surrogate or the intended parents. Surrogacy agreements are unenforceable and there is no scrutiny of surrogacy arrangements until after the baby has been born, by which point it is arguably too late. The inability to obtain a pre birth order in the UK leads many intended parents to travel overseas, meaning they are then faced with increased expense, immigrations laws that they must also navigate, and concerns about the exploitation of women and children.
    The UK surrogacy laws have always been altruistic in nature, rather than commercial, and this will continue, but under the proposed changes the intended parents would be recognised as the legal parents from birth (subject to the surrogate’s consent). This is far more in line with the shared intentions that the surrogate and the intended parents have right from the start.
    The new surrogacy pathway
    The reforms will apply to UK arrangements only. Intended parents that travel abroad for their surrogacy arrangement will still need to make an application for a parental order.
    The new pathway will allow the intended parents to be recognised as the legal parents from birth, subject to certain requirements and safeguards being met, these are:

    An agreement between the surrogate and the intended parents
    A preconception assessment of the welfare of the child to be born by the arrangement
    Independent legal advice for the intended parents and the surrogate
    Implications counselling to be undertaken by the intended parents and the surrogate
    Medical screening for the intended parents and the surrogate
    Enhanced criminal record checks
    Agreement of a Regulated Surrogacy Organisation to permit the arrangement onto the new pathway

    There is also suggested reform to the payments that can be made to surrogates to clarify what constitutes a “reasonable expense”, which will provide much needed clarity.
    Authorised payments will be:

    Costs related to the decision to enter an agreement

    Unauthorised payments will be:

    General living expenses

    The surrogacy reforms will see the creation of regulated bodies, called Regulated Surrogacy Organisations (RSOs), non-profit organisations governed by the Human Fertilisation and Embryology Authority (HFEA). They will oversee agreements under the new pathway and provide support to surrogates and intended parents.
    Reforms to the parental order process
    Parental orders will still be needed for international arrangements, but some reforms to the process have been recommended. One reform is to enable a parental order to be made without the consent of the surrogate where the welfare of the child required it.
    It is also recommended that the surrogate’s spouse should not be a legal parent and so their consent will not be required for parental order to be granted.
    A new surrogacy register
    A new register would be created to allow anyone born through surrogacy to access information about their origins. Children born via surrogacy in England and Wales will be able to access non identifying information at age 16 and identifying information from age 18. In Scotland both would be from age 16.

    These reforms do not go as far as some would have liked, but they do mean that UK surrogacy agreements will be better supported and regulated, which is welcome news. It is now for the Government to consider these recommendations. Watch this space.
    Useful links
    Why we need surrogacy law reform
    International surrogacy – what you need to know
    UK surrogacy law FAQs
    A focus on surrogate consent and parental orders
    Stowe talks: Surrogacy in the UK More

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      A focus on surrogate consent and parental orders

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      Stowe family lawyer Tamara Adams explores potential complications in surrogacy cases and asks do surrogates need to give consent for a parental order to be made in the UK, and how should that consent be given?
      What is a Parental Order?
      A Parental Order is an order obtained by the court post birth which makes the intended parents of the child the legal parents and permanently extinguishes the legal status and responsibilities of the surrogate and, if applicable, their spouse.
      After a Parental Order has been made, a UK Birth Certificate will be issued recording the intended parents as the legal parents. This replaces the original birth certificate.
      To obtain a parental order, the intended parents must satisfy the family court that they meet all the criteria set out in Section 54 (for couples) and Section 54A (for single parents) of the Human Fertilisation and Embryology Act 2008. These are:

      There must be a genetic link to the child with at least one of the intended parents
      The application can be made by an individual, or a couple who are married, in a civil partnership or enduring relationship
      An application must be made within 6 months of birth
      The surrogate and their spouse must freely consent to the order being made. This consent cannot be given within 6 weeks of the child’s birth
      The Applicant(s) must be domiciled in the UK
      The child must be living with the applicant(s) at the time of the application; and
      The court must be satisfied that no money or other benefit (other than for expenses reasonably incurred or authorised by the court) has been given or received by either of the applicants for, or in consideration of, the surrogacy arrangement

      A question of surrogate consent
      Many of the Parental Order requirements have needed judicial clarification. Most recently in Re C (Surrogacy: Consent) [2023] EWCA Civ 16 whereby the Court of Appeal provided essential guidance on the requirement for consent from the surrogate.
      Within this case, the surrogate provided consent to a Parental Order being made on the basis the Court also made a Child Arrangement Order to allow for the surrogate to spend time with the child.
      In August 2021, a Parental Order was made alongside a child arrangement order for regular contact between the surrogate and the child. The surrogate then sought to appeal on the basis she had not provided free and unconditional consent. As a result, she sought for the Parental Order to be set aside.
      The intended parents argued that the necessary consent was given, but if that is not so, they contended that irrespective, the parental order should be left in place and section 54(6) of the Human Fertilisation and Embryology Act 2008 can be read in a way as to confer a dispensing power upon the court.
      The case background

      A surrogacy agreement was signed prior to insemination
      The surrogate was pregnant and then, the relationship between the parties deteriorated
      The child was born, and the surrogate received postnatal counselling
      The intended parents then applied for a parental order but the surrogate returned the form of acknowledgement stating she did not consent to the making of the order and opposed the application
      The surrogate then provided consent orally in court on the basis that a child arrangements order was made providing for her to have monthly contact and a prohibited steps order to prevent the intended parents from moving without her written agreement
      The court in the first instance then proceeded to make a parental order and a child arrangement order. The next day, the surrogate then made contact with the intended parent’s legal team to express she felt under pressure to consent to the order
      The contact order begun, and contact took place over time. However, one scheduled contact did not take place. The intended parents then applied to discharge the terms of the contact order and they did not permit contact thereafter
      The surrogate then sought permission to appeal the parental order
      The appeal was on the basis of two grounds:

      The court was wrong to make a parental order when it was clear the surrogate’s consent was being given conditional on the making of a child arrangement order and therefore not “unconditionally”; and
      The Court was wrong to make a parental order when the consent provided by the surrogate was not provided “freely”.

      Court of Appeal decision
      The Court of Appeal considered the wording of Section 54(6) of the Human Fertilisation and Embryology Act 2008 and expressed the right of the surrogate not to provide consent is a pillar of the legislation.
      The Court confirmed that if there is any doubt about consent, it will be a matter for the Court to judge, considering all circumstances.
      The court confirmed that consent should be in writing. Even then, consent can be withdrawn at any stage before the order is made. This formality is not mandatory but, in its absence, should put the court on its guard to ensure the proffered consent is valid.
      In this case, the consent was given orally in a face-to-face court hearing and as such, any stated consent was devalued due to the possibility the court process might in itself be exerting pressure on the surrogate.
      The court therefore determined that the European Convention on Human Rights do not require a Parental Order which was made without valid consent from the surrogate.
      The court determined that the rights of the intended parents and child are not violated by the setting aside of the order for lack of consent on the part of the surrogate. As a result, the Court of Appeal dismissed the Respondents application for a Parental Order. The appeal was therefore allowed. The Court confirmed the child should be brought up by the intended parents and have contact with the surrogate as was intended by all.
      It therefore remained agreed for this to take place but the Court of Appeal did not have the power to make such an order as was beyond the scope of the appeal.
      All in all, this case is pivotal in reiterating the importance of obtaining the surrogates free and unconditional consent to a parental order and reiterated the importance of this consent to be provided in writing.
      Useful links:
      UK surrogacy law FAQs
      International surrogacy – what you need to know
      Stowe talks: Surrogacy in the UK with My Surrogacy Journey
      Guide: Surrogacy and Parental Orders
      Why we need surrogacy law reform More