Surrogacy law proposals: pros and cons

It is 1985, Into the Groove is continuing its reign in the charts and acid wash jeans are a fashion staple. By contrast, in a much less upbeat political arena, the Surrogacy Arrangements Act (SAA) is rushed through parliament and, among other things, commercial surrogacy becomes a criminal offence. Together with the Human Fertilisation and Embryology Act 2008 Act (HFEA) and case law, the SAA remains one of the most important pieces of surrogacy legislation. The Act reflected the suspicion and concern regarding the practice of surrogacy at the time of its enactment and continues to be a deterrent for many intended parents considering surrogacy or, at least, domestic surrogacy.

Fast-forward a mere 38 years, and on 23 March, 2023 after a long and detailed consultation period, the Law Commission of England and Wales (in conjunction with the Scottish Law Commission) published its report ‘Building Families Through Surrogacy: A New Law’ in which its “… outlin[es] recommendations for a robust new system to govern surrogacy…”

There has been a significant shift in societal beliefs (and a welcome steer away from denim washing) over the past three decades. This, coupled with the scientific and medical advances over the same period, has resulted in an increase in the number of people choosing surrogacy as a path to parenthood. However, sadly for those that choose surrogacy, there has been a far less significant amount of progress in the development of family law. The current surrogacy laws in the UK are outdated, inadequate and, quite frankly, discriminatory. They are certainly not ‘fit for purpose’.

Current law and the issues

Legal parenthood

Current law treats the surrogate who carries the child as the child’s legal parent, irrespective of whether or not they have a biological link to the child. That status is extended to the surrogate’s spouse, unless it can be established that they do not consent.. To become legal parents themselves, the intended parents (IPs) are required to make an application for a parental order, which transfers parenthood from the birth mother (and her spouse if relevant) to the IPs upon satisfaction of a set of criteria. It can take up to a year for the court to make a parental order and the process involves a series of background checks, home visits with the parental order reporter (which many find intrusive and a source of significant stress when they’re trying to care for a very small baby) and meetings with both the surrogate and IPs. On top of what is an often difficult and notoriously expensive journey to become parents, IPs will need to attend court which many will find intimidating. Many IPs choose to instruct a solicitor and barrister to advise and represent them, but this will inevitably increase costs.

Until a parental order is made and/or the court gives the IPs parental responsibility for the child, they are unable to make basic, day-to-day decisions about a child who is, most often, already in their care. To give a stark example, if the child needed critical medical care in this period, it is the surrogate and their spouse that would have the power to make decisions with the doctors about that care and not the IPs. The mere thought of that, let alone the reality, is incredibly frightening for IPs who, in my experience, feel incredibly vulnerable until the child’s new birth certificate arrives. This ‘legal lacuna’ and period of limbo is one issue which many practitioners were hoping would be addressed by the commission.

Going overseas

Although the data is limited and arguably not fully reflective of the reality on the ground, the number of IPs travelling to foreign jurisdictions - where there is no prohibition on commercial surrogacy - to undertake surrogacy arrangements seems to be increasing. Indeed, this reflects what I have seen in my own practice. For many, this is the only viable option. However, it is an expensive avenue that not all IPs will be able to afford – many have already gone through costly rounds of IVF, for example. It will also involve time off work and often an increased anxiety – your baby is being carried by your surrogate (who you may never meet) potentially thousands of miles away in a place that is unfamiliar to you perhaps with the added complication of a language barrier. Psychologically that is, understandably, a very difficult concept for many IPs.

The High Court

Parental order cases with an international element are currently automatically referred to a High Court judge. That venue in and of itself often increases anxiety about the procedure for IPs and, given the hugely busy High Court lists, can lead to delay and increased costs. To my mind, the fact of the international element in and of itself does not mean that the case could not be dealt with by a district judge and/or magistrates in the way that domestic surrogacy cases are. There are straightforward international cases. To my mind, this could be achieved by extending the signposting exercise that already exists within the court system when finance or Children Act cases are issued – perhaps a Certificate of Complexity could be completed at the same time as the Form C51? This would, I recognise, add another ‘job’ to the list of the already overburdened court staff but ultimately the process could be streamlined and made much more user friendly.

Reasonable expenditure

IPs remain concerned about what expenditure relating to surrogacy will or will not be permitted by the court. This causes confusion for IPs – the consequences of getting this wrong can feel overwhelming and prohibitive - and arguably acts as a deterrent for domestic surrogates.

The new proposals

The key proposal – and one which I welcome - within the Law Commission’s report is the development of a new pathway to parenthood, which will be overseen by new non-profit making surrogacy organisations (called Regulated Surrogacy Organisations). Presuming the following criteria are met, IPs will be able to use this new pathway:

• The IPs must be at least 18 years old, and the surrogate must be at least 21 years old.
• At least one of the IPs must have a genetic link to the child.
• In circumstances where there are two IPs, they must be married, in a civil partnership, or in an enduring family relationship.
• At least one of the IPs, and the surrogate, must meet a ‘test of connection’ with the UK – this means that they must either be domiciled or habitually resident in the UK (previously jurisdiction to make a parental order was based on domicile alone).

Additionally, IPs and surrogates must comply with medical and enhanced criminal record checks, receive independent legal advice and implications counselling, and enter into a surrogacy agreement in order to reduce the risk of the surrogacy arrangement breaking down. Provided these steps are followed, the IP can be recognised as the legal parents of the child at birth and avoid the process of applying for a parental order (which will remain in place for those that cannot use this pathway – that will include those who have gone down the international surrogacy route, the lion’s share of the applicants I see). The surrogate will not formally have to provide consent, provided all other requirements are met.

Under the report’s proposals, IPs are required to give a statutory declaration between six and 12 weeks after the child’s birth detailing the payments they have made in connection with the surrogacy arrangement. It is proposed that there will be permitted categories of payment, including insurance for the surrogate, travel and accommodation costs, pregnancy related items, modest gifts for the surrogate, medical, wellbeing and related costs, additional dietary requirements relating to the pregnancy, costs of domestic support and a modest recuperative holiday for the surrogate and her family. The final report does not indicate that a cap will be placed on the amount of the payments. Payments for the surrogate’s general living expenses, gestational services and those considered compensatory remain prohibited.

Despite the suggestion by the Law Commission in 2019 that the proposals may include recognition for children born through international surrogacy arrangements on a country-by-country basis, this is not a proposal contained within the final report. This will be a disappointment to many intended parents, who will be required to continue with the parental order application process to be recognised as the child’s legal parents.

A pro and some more cons

The Law Commission’s proposals go some way to alleviating the concerns articulated by some IPs, professionals, and surrogates. They arguably do not go far enough. If enshrined into legislation there would still be cases where the law does not provide a straightforward option and/or solution. I was hoping, for example, that the need for at least one of the IPs to have a genetic link to the child to may have been done away with. However, the proposals do encapsulate a much-needed positive development in this area and, for those who could use the new pathway to parenthood, potentially a much less stressful experience after their child’s birth.

I am thinking, for example, of the IPs in the recent case of AY & Anor v ZX. The issue in this domestic surrogacy case was whether s.54(1)(a) of the Human Fertilisation and Embryology Act 2008 applied to artificial insemination which has taken place at home rather than a licensed clinic or private surgery. The IPs in this case made their applications for parental order for the twins born via the surrogacy arrangement in 2021, and due to a lack of clarity in the current law, were only granted their parental orders in 2023. The case began in the magistrates court, where the IPs were originally told that their application would fail (because of the home insemination) before it was ultimately heard and the applications approved by Mr Justice MacDonald, the High Court liaison judge. It is clear from the judgment that this was a long and difficult journey for the IPs. Their twins were born prematurely and one still needed medical assistance as at the time of the final hearing. Added to that the lack of certainty around legal parenthood, this will have been a difficult start for this family who would seemingly have qualified for the new and more straightforward pathway to parenthood, saving them time, stress and money – a big pro.

Another pro, to my mind, is the introduction of a new surrogacy register which would give children born through surrogacy the opportunity to trace their origins when they are older. This is in keeping with there being an adoption register, the donor sibling link and, later this year, the first cohort of donor-conceived individuals born after donor anonymity was lifted will be able to apply for identifying information about their donor.

A potential con was raised in a recent article in the Guardian. A woman, who had previously acted as a surrogate, raised practical and financial concerns about “tightening existing practices, which I fear could be too strict. Three weeks after I gave birth, I was still unable to walk and required a lot of help from my partner. My surrogacy expenses reimbursed him for his loss of earnings during this time, but the proposals mean I would only have been allowed to claim for the first two weeks of his help.”

Conclusion

As the Law Commission says on its website, it is now for the government to review and consider the recommendations in their final report. With surrogacy seemingly never near the top of the ‘to do’ list, I wonder how long it will take for this to happen and even an interim report to be received. For the IPs and surrogates adversely impacted by the current law not being ‘fit for purpose’, let’s hope not too long.

Linzi Bull is a partner and head of modern families at Penningtons Manches Cooper. Sarah Everington is a trainee.

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