Building Families the Modern Way – a time for change in surrogacy law.

The modern family has benefited from much legal reform in recent years. However, there is more to be done to bring legislation in line with the modern family, in all its forms.

Our attitudes towards surrogacy have changed dramatically over the last several decades, since much of the current surrogacy laws were put in place. Historically, surrogacy was toughly judged and comments like “how can a woman give away her baby?” were not uncommon.

Thankfully, progress has been made, (although sadly, some such negative commentary still occurs) and generally speaking, we are now more open minded to surrogacy and the modern family in general.

A reform of surrogacy laws has been the subject of campaign for many years.   The Law Commissions (of England and Wales and the Scottish) launched their consultation paper on reforming the law relating to surrogacy on 6 June 2019 at the Surrogacy Law Reform Conference in London.

The current surrogacy process requires the intended parents to apply for a Parental Order in order that they have legal parenthood status and the surrogate and her spouse or civil partner have their legal status extinguished. There are set criteria which must be met if a Parental Order is to be granted. Some criteria are more fluidly applied by the courts than others.

There are many problems with the current legal framework.

Some examples of the problems with the current legal framework and the proposals made by the Law Commissions to rectify those issues are:

  • There has been significant growth in international surrogacy arrangements. It can be a lengthy process to obtain the required travel documents to get the child back to the UK. That can mean the child and the intended parents need to stay in a foreign country for a significant period of time. The Law Commissions propose that intended parents who have gone abroad for their surrogacy arrangement will still need to apply for a Parental Order. The reason for that is different countries operate different legal frameworks for surrogacy and it is vital that in these circumstances the court can assess the position on a country by country basis.
  • On birth, the surrogate and, if relevant, her spouse or civil partner are the child’s legal parents. This remains the case until a Parental Order is made to extinguish that status and grant it to the intended parents. Consent is required if a Parental Order is to be made. That position supports the generally false notion that a surrogate sees the child as hers and that she wishes to have legal status as the child’s mother. In fact, cases where consent by the surrogate to grant legal parenthood to the intended parents is withheld are unusual. It is clear from those consulted by the Law Commissions that surrogates have no desire to be the child’s legal mother. They are clear that they are simply carrying a child to help someone have a family of their own. The Law Commissions propose that the intended parents should be the legal parents from birth. The surrogate will have a defined time period post birth in which she can object.
  • There are few safeguards for those choosing a surrogacy arrangement. For instance, there is no requirement for legal advice to be obtained. The Law Commissions propose that a number of measures be taken pre-conception (shifting away from the current post birth focus). Such measures include medical and criminal checks of all participants of the surrogacy arrangement, independent legal advice and implications counselling. A written surrogacy agreement is also to be entered into. A new pathway is proposed for domestic surrogacy arrangements incorporating the above safeguards, an assessment of the welfare of the child and granting legal parenthood on birth – therefore avoiding the need for a Parental Order.
  • There is a current requirement that there be a genetic link between the child and at least one of the intended parents. That excludes couples using double donation (sperm and eggs) in a surrogacy arrangement from obtaining a Parental Order. The Law Commissions propose that the requirement for a genetic link be removed if, for medical reasons, either of the intended parents are not able to provide sperm or eggs.

The current requirement of domicile is also thought to be unnecessary and it is proposed that the requirements to obtain a Parental Order are to generally be broadened. The status of the intended parents’ relationship and the  requirement that the child have his her home with the intended parents are also to be considered as is the issue of “reasonable expenses”.

Case law has already moved beyond some of the requirements as set out in the current law to obtain a Parental Order so as to place the child’s welfare as the central consideration. One example of that is, under the current framework, there is a requirement that intended parents make their application for a Parental Order within 6 months of the child being born. The court has, since 2014, however been prepared to make a Parental Order even if the application is made outside of that window. It makes no sense therefore to maintain that requirement where the courts do not action it in practice.

The Law Commissions’ paper is welcome. Reform is necessary. The consultation process ends on 27 September 2019. However, thereafter, given the current political landscape, who knows how long it will be until we see any of the proposals come into force.

Rachel Lemon is a Partner and head of the Modern Families Sector at Mundays. Should you require more information about surrogacy please contact Rachel on 01932 590 612 or at rachel.lemon@mundays.co.uk

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