Law Commission publishes reforms to overhaul surrogacy laws

Recommended reforms published for the government to improve surrogacy laws

The Law Commission of England and Wales and the Scottish Law Commission jointly published on 29 March a report and draft legislation outlining a new regulatory regime to overhaul the law on surrogacy. The proposed reforms aim to create a new system to govern surrogacy that works to protect and support all those involved in surrogacy arrangements.

If enacted, under the reforms proposed to the government, a new surrogacy pathway, governing surrogacy agreements, would be established to allow intended parents to be the legal parents of their children at birth, subject to a period during which the surrogate can withdraw their consent, rather than having to wait for a parental order to confer parentage, which can take months and, in some cases, even a year after birth.

The Law Commission’s proposals also include the creation of regulated non-profit surrogacy organisations to assist with surrogacy arrangements and a surrogacy register to record births following a surrogacy arrangement. The report proposes an updated set of rules on permitted payments that can be made to surrogates, as well as prohibited payments, which includes continuation of the prohibition on “for profit” commercial surrogacy.

The reforms are intended to overhaul the current surrogacy laws, which are considered to be outdated, to provide greater clarity, safeguards and support for those involved in surrogacy arrangements. The proposed new rules also aim to dissuade UK couples from entering into international surrogacy agreements, which the Law Commission states can involve a high risk of exploitation. Where individuals do opt for international surrogacy arrangements, the Law Commission recommends certain legal and practical measures to safeguard the welfare of the children.

Commenting on the surrogacy law reforms, Professor Nick Hopkins, Family Law Commissioner at the Law Commission, said: “The use of surrogacy to form a family has increased in recent years, but our decades-old laws are outdated and not fit for purpose. Under current law, surrogacy agreements are often a complex and stressful process for all involved. We need a more modern set of laws that work in the best interests of the child, surrogate, and intended parents. Our reforms will ensure that surrogacy agreements are well-regulated, with support and security built into the system from the very beginning. By introducing a new regulatory route with greater legal certainty, transparency and safeguards against exploitation, we can ensure that we have an effective regime for surrogacy agreements that places the interests of the child at their heart.”