Parents should get automatic parental rights for surrogate children from birth, say Law Commissions

‘The laws around surrogacy are outdated and no longer fit for purpose’

Newborn with Father (Getty Images)

New parents should be able to acquire legal responsibility for a surrogate child as soon as it is born, rather than having to apply for it through the courts, law commissioners state.

On Thursday, the Law Commission of England and Wales and the Scottish Law Commission called for a new surrogacy process to bring greater certainty, prioritise the child in question, and provide comfort to both the surrogate and the intended parents.

The proposals include allowing intended parents to automatically become legal parents when the child is born, subject to the surrogate retaining a right to object for a short period after the birth.

Under current surrogacy laws, an intended parent must apply for a parental order or adoption in order to become the legal parent of a child born via surrogacy.

In order to be eligible to do so, an intended parent must be genetically related (the egg or sperm donor) to the child.

They must also have the child in question living with them and reside permanently in either the UK, Channel Islands, or Isle of Man.

Intended parents must apply for the order in the first six months of the child's birth. However, the process can take months to complete which the Law Commisions argue "doesn’t reflect the reality of the child’s family life".

Sir Nicholas Green, chair of the Law Commission, said of the consultation: “More and more people are turning to surrogacy to have a child and start their family. We therefore need to make sure that the process is meeting the needs of all those involved.

“However, the laws around surrogacy are outdated and no longer fit for purpose. We think our proposals will create a system that works for the surrogates, the parents and, most importantly, the child.”

Other proposals listed by the commisions include the launch of a national register to allow children born through surrogacy agreements to uncover information about their origins and the removal of the requirement of a genetic link between the intended parents and the child, where medically necessary.

The organisations state that a new surrogacy process would also require safeguards, such as counselling and independent legal advice, for those entering into a surrogacy arrangement.

Surrogacy first became legal in the UK in 1985 under The Surrogacy Arrangements Act and since 2010, same-sex couples have also been able to become intended parents in the UK.

In the UK, surrogacy is legal but it cannot be advertised or commercialised, meaning parents are not allowed to pay someone to be a surrogate, or advertise surrogacy as a service.

Hannah Saxe, senior associate at solicitor firm Irwin Mitchell, said the call to reform the current surrogacy law is “fantastic”.

Mother and a baby (iStock)

“There needs to be greater clarity about the law so that the people involved in the process are better informed,” Mitchell added.

“This in turn should lead to fewer surrogacy arrangements not working out and will therefore ensure that those involved are better protected.”

During the consultation period, which closes on 27 September, the commissions have said that they will not put forward any proposals around payments to the surrogate.

However, as part of the consultation, the commisioners want to understand public views on surrogacy payments. As a result, the consultation includes questions around the categories of payment that the intended parents should be able to pay to the surrogate, to seek a consensus on this issue.

While it is illegal to pay someone to be your surrogate in the UK, intended parents are expected to cover expenses.

Brilliant Beginnings – an organisation that supports gestational surrogates – states that expenses in the UK can include anything from travel costs, treatment costs, maternity clothes, counselling or professional support in connection with surrogacy, childcare costs and any loss of earnings.

Dustin Lance Black, a surrogate campaigner who welcomed his first child with Olympic diver Tom Daley last year, is in favour of the law reform surrounding surrogacy.

“Good, clear law helps people make stronger, clearer decisions," he stated.

“Solid, definitive surrogacy law in the UK will have the power to keep surrogates, egg donors, intended parents, children, and families safe.”

Jessica Smart, a midwife consultant for Surrogacy UK, concurred with Lance, describing the current law as “archaic”.

“Everybody in the surrogacy community is delighted that these changes could finally be being made,” Smart said.

Find out more about surrogacy here.