Under existing law it is a criminal offence for any third party, including a lawyer, to charge a fee for helping arrange a surrogacy.
Now the Department of Health wants to ensure that lawyers are involved at the outset of what could prove a legal minefield for the surrogate mother, the adoptive parents and even the sperm donor.
The ban on paying surrogacy agents - who have come to dominate the US market - is likely to remain in force. But some fear that the principle of payment for a third party is another step towards allowing British "baby brokers".
The law was set down in the Surrogacy Arrangements Act 1985, which makes no distinction between lawyers advising women and would-be parents on their rights and agents who try to make money from matching childless couples. The prohibition means lawyers have had to work for free or turn couples away if they come to them for help.
The Solicitors Family Law Association (SFLA) has held meetings with the Department of Health to warn of the risks if lawyers remain excluded.
One result, it is feared, is that the surrogate mother and the sperm donor are entering into contracts that might prove unenforceable. It could emerge that all parties have unexpected rights and responsibilities. Named sperm donors, for example, could find themselves liable to pay maintenance.
The Department of Health surrogacy review team, which is investigating the whole surrogacy market, believes the law must be relaxed so that all sides are properly advised.
Gill Butler, a solicitor who has advised on a number of surrogacy cases without contravening the legislation, said these contracts are often entered into to protect sperm donors from being pursued for maintenance payments by the Child Support Agency (CSA). She said she knew of at least one case in which a lesbian client who had had a child through artificial insemination had been asked by the CSA to name the father.
The law, said Ms Butler, encouraged surrogate mothers to give false names of fathers on the birth certificates so that the CSA couldn't chase them for maintenance payments.
The problem did not arise with sperm banks as these sperm donors are unidentifiable. Only last year an independent review rejected the idea of any payments to those involved to prevent it becoming a commercial activity to the benefit of agents.
Margaret Brazier, Professor of Law at Manchester University, who chaired the review panel, said: "If surrogacy is just another payment, then it would be open to the normal rules of contract and commerce, and that would be unacceptable.
"Children should not be seen as commodities."Reuse content