header-logo header-logo

04 April 2023
Issue: 8020 / Categories: Legal News , Family
printer mail-detail

Surrogacy ‘revolution’ underway

Intended parents opting for surrogacy could potentially become the legal parents at birth, under an overhaul of surrogacy laws recommended by the Law Commission and Scottish Law Commission.

The report and draft legislation, published last week, provides for a pathway to surrogacy that would be overseen by non-profit organisations, known as ‘regulated surrogacy organisations’ (RSOs) operating under the regulation of the Human Fertilisation and Embryology Authority (HFEA).

A Surrogacy Register would be created, under which children can trace their birth origins at a later stage. The pathway would encompass pre-conception screening and safeguarding requirements, medical and criminal records checks, independent legal advice and counselling.

The intended parents could become the legal parents from birth, subject to the surrogate’s right to withdraw her consent for a certain period. Currently, intended parents must apply to court for a parental order, which can take months. The Commissions recommend reform to parental orders, including allowing the court to make a parental order where the surrogate does not consent if the child’s welfare requires this.

Commercial ‘for profit’ surrogacy would continue to be banned. However, intended parents would be able to make ‘permitted payments’ for medical and wellbeing costs, to recoup lost earnings, pregnancy and travel. Payment for rent or other living expenses would not be permitted.

Law Commissioner, Professor Nick Hopkins said: ‘We need a more modern set of laws that work in the best interests of the child, surrogate, and intended parents.’

Connie Atkinson, family partner at Kingsley Napley, said the recommendations were ‘long overdue’ and ‘will provide more safeguards for surrogates as well as intended parents’.

‘Anything which streamlines the existing process and provides greater certainty and checks and balances for the parties involved must be a positive step and ultimately will benefit the children born via this route and their families.’

Natalie Sutherland, a partner specialising in surrogacy and fertility law at Burgess Mee Family Law, described the recommendations as ‘nothing short of revolutionary.

‘Surrogacy law has been stuck in a time warp, failing to keep pace with changing attitudes, scientific advances and the increase in children born through surrogacy.’

Sutherland said the recommendations remove ‘the legal limbo that surrogate babies are currently born into’ and ‘strike the correct balance’ in putting the child first and protecting both surrogate and intended parents.

However, she called for further detail on how the regulation of surrogacy agencies would work in practice, since RSOs would represent the interests of both surrogates and intended parents. She expressed disappointment the Commissions did not go ‘as far as to recommend a system whereby surrogacy arrangements conducted in certain vetted countries will be automatically recognised, much like with international adoptions from certain listed countries’. Moreover, she pointed out the Law Commissions had ignored the question of double donation where intended parents who use a donor egg and donor sperm will still be required to adopt.

Sarah Williams, modern family partner, Payne Hicks Beach, said: ‘The proposed reforms are welcome as the current law often means that couples are driven to seek international surrogacy. In some countries, this places women and children at a high risk of exploitation. 

‘By offering an approved and regulated body that will support the parties in entering a surrogacy agreement there will be more security and protection for the parties.’

Issue: 8020 / Categories: Legal News , Family
printer mail-details

MOVERS & SHAKERS

Jurit LLP—Caroline Williams

Jurit LLP—Caroline Williams

Private wealth and tax team welcomes cross-border specialist as consultant

Freeths—Michelle Kirkland Elias

Freeths—Michelle Kirkland Elias

International hospitality and leisure specialist joins corporate team as partner

Flint Bishop—Deborah Niven

Flint Bishop—Deborah Niven

Firm appoints head of intellectual property to drive northern growth

NEWS
Talk of a reserved ‘Welsh seat’ on the Supreme Court is misplaced. In NLJ this week, Professor Graham Zellick KC explains that the Constitutional Reform Act treats ‘England and Wales’ as one jurisdiction, with no statutory Welsh slot
The government’s plan to curb jury trials has sparked ‘jury furore’. Writing in NLJ this week, David Locke, partner at Hill Dickinson, says the rationale is ‘grossly inadequate’
A year after the $1.5bn Bybit heist, crypto fraud is booming—but so is recovery. Writing in NLJ this week, Neil Holloway, founder and CEO of M2 Recovery, warns that scams hit at least $14bn in 2025, fuelled by ‘pig butchering’ cons and AI deepfakes
After Woodcock confirmed no general duty to warn, debate turns to the criminal law. Writing in NLJ this week, Charles Davey of The Barrister Group urges revival of misprision or a modern equivalent
Family courts are tightening control of expert evidence. Writing in NLJ this week, Dr Chris Pamplin says there is ‘no automatic right’ to call experts; attendance must be ‘necessary in the interests of justice’ under FPR Pt 25
back-to-top-scroll