Surrogacy law and its proposed reforms

For many couples, surrogacy has been a way of bringing a child into their lives who shares a genetic link with either or both of them.

So how does surrogacy work, and what legal implications do those involved need to consider?

What is surrogacy?

Surrogacy is an arrangement whereby a woman (the surrogate) bears a child for another person or persons, who will then become the child’s parent/s after birth.

Surrogacy is an increasingly popular choice for those who cannot get pregnant and/or bear a child themselves for medical reasons. It’s also an option for male couples or single males who want a child.

How does surrogacy work?

There are two forms of surrogacy, as captured by section 33 of the Human Fertilisation and Embryology Act 2008 (HFEA 2008):

• Gestational (also known as Total surrogacy): the surrogate mother is implanted with the couple’s egg and sperm; and
• Traditional (also known as Partial surrogacy): the male’s sperm is used with the surrogate’s own egg or donor eggs.

Who are the legal parents of a surrogate child?

At birth, the surrogate will be the child’s legal parent. Legal parenthood can be transferred by a Parental Order or adoption after the child is born. A solicitor specialising in surrogacy law can advise you on this.

It’s also worth noting that, if the surrogate is married or in a civil partnership, their spouse/partner will be the child’s second parent at birth, unless they do not give their consent to the pregnancy.

Surrogacy disputes

Under section 1A of the Surrogacy Arrangements Act 1985, surrogacy arrangements are not enforceable in law. If the surrogate mother does not follow through with her obligation and hand the child over after birth, unfortunately, there is little that the commissioning couple can do.

In the case of a dispute over legal parenthood, the court will make a decision based on the best interests of the child. Surrogacy disputes are rare, but it’s important to seek specialist legal advice as soon as possible.

What is the law on surrogacy?

The original legislation, the Surrogacy Arrangements Act 1985 (SAA 1985), regulates surrogacy and outlaws commercial surrogacy arrangements.

This act was amended by HFEA 2008, however, the SAA remains in force and makes it a criminal offence to initiate or negotiate surrogacy arrangements on a commercial basis, and further restricts advertising of surrogacy arrangements. It also prohibits the negotiation of commercial payments for surrogacy.

Parental Orders

Currently, for the commissioning couple to be able to treat the child as their own, parents can remove the effect of section 33 of HFEA 2008 by applying for a Parental Order under section 54 of the act.

The commissioning couple has to meet one of three requirements for a Parental Order to be obtained. The requirements are for the parents to be:

• married to each other;
• civil partners of each other; or
• living as partners in an enduring family relationship, provided that they are not within the prohibited degrees of relationship.

These limitations excluded single people or close relatives from obtaining a Parental Order.

Parental Orders for one applicant

Under section 54A of HFEA 2008, when a Parental Order application is made by one person, the court may make an order so that a child can be legally treated as the child of the applicant if:

• the child has been carried by a woman who is not the applicant, as a result of gestational or traditional surrogacy, or her artificial insemination;
• the reproductive cells of the applicant were used to bring about the creation of the embryo; and
• the conditions in subsections (2) to (8) are satisfied. These are:
  • the child’s home must be with the applicant(s);
  • the applicant(s) must be domiciled in the United Kingdom, the Channel Islands or the Isle of Man;
  • the woman who carried the child as a result of assisted reproduction is not the applicant;
  • the egg or sperm of at least one of the applicants must have been used to create the child;
  • no payments can be made except for reasonable expenses; and
  • consent to the parental order must be given by the mother (the woman who carried the child), and the other parent if there is one. The mother’s consent is not effective if it is given less than six weeks after the birth.

The applicant must apply for a Parental Order within six months, beginning with the day on which the child is born.

Surrogacy law reforms

A consultation period on surrogacy law ran between 6^th June and 11^th October 2019, after the publication of a paper, ‘Building families through surrogacy: a new law’. A final report setting out recommendations for the reform is currently being prepared, and we expect to see a draft Bill in Autumn 2022.

The paper proposed the following reforms:

• To replace Parental Orders with a new surrogacy pathway to allow most parents to be legal parents from the moment of birth.
• To introduce specific regulations for surrogacy arrangements and safeguards such as counselling and independent legal advice to reduce the risk of arrangements breaking down.
• To allow international surrogacy arrangements to be recognised in England and Wales, on a country-by-country basis.

A move away from the traditional ‘mother and father’ approach

The HFEA 2008 consolidated previous legislation to ensure that the law adapts to fit the evolving scientific and social background of the 21^st century. The relevant sections came into force on 6^th April 2009 and apply to children conceived on or after that date.

This provision has moved away from the traditional mother and father approach to ‘parentage’. Significantly, it provides for a mother and another parent who may or may not be the father. This allows for female-sex parenting and for parenting by those who are not the biological parents of the child.

The notion of the ‘other parent’ has become much more inclusive, catering for same-sex parenting and parenting by those who are not a child’s biological parents.  Nevertheless, there are still calls for reform to assert the rights of the commissioning parents from the outset to allow for these arrangements to be enforceable but most importantly, to provide for greater certainty and stability for the newly born child where issues can arise.

Get in touch with our expert surrogacy solicitors

If you’re considering surrogacy or becoming a surrogate, it’s important that you understand the risks, both legal and emotional, involved in the surrogacy process.

Our specialist surrogacy solicitors can advise you on a range of issues, including the legal rights of surrogates and parental rights. To find out more, call us on 0117 325 2929 or complete our online enquiry form.