Time to reform our outdated Surrogacy Laws?

Today, the Law Commission of England and Wales and Scottish Law Commission have announced that the current laws in relation to surrogacy are outdated and require reform. The existing laws date back to the 1980s. The Joint Law Commission has recognised there is a need to provide support for all of those involved in the process - the child, the surrogate and the intended parents and is now consulting on recommendations to reform.

Surrogacy is recognised as being a lawful process in the United Kingdom. It is where a woman bears a child on behalf of someone else, who then becomes the child’s intended parent. Currently, the intended parents have to apply to the Family Courts for a Parental Order, following the birth of the child to secure legal rights. This process can take a number of months to complete.

Future Recommendations

The Law Commission’s findings have identified that the current system does not adequately recognise the wishes of both the surrogate and intended parents. It is proposed that a new system should enable the intended parents to become legal parents, when the child is born. This change would be subject to providing the surrogate with a short period of time, following the child’s birth to object.

A consultation is ongoing to consider setting up a new “pathway” for domestic surrogacy, putting the child at the heart of the process and providing comfort and confidence to the surrogate and intended parents. A new pathway would also remove the requirement for there to be a genetic link between the intended parents and the child where this is medically required. This will seek to address the current system that impacts on individuals and couples who are infertile.

It is proposed that a Surrogacy Regulator be created to monitor the process, ensuring that standards are kept high, together with a new National Register to allow those born in surrogate arrangements to obtain information in relation to their background and how they were conceived. Safeguards would be established as part of the new process, including counselling for those involved, and legal advice.

Currently, it is unlawful for monetary payments, other than expenses by the intended parents to be paid to the surrogate. However, as part of the joint Law Commission’s consultation, public opinion is being sought on this issue. The Law Commission has not made any recommendations thus far to reform the existing laws in relation to monetary payments.

The joint Law Commission’s recommendations seek to regulate and protect the interest of all parties involved in the surrogacy process, ensuring that the needs are met of all those involved. It is envisaged that greater clarity within our surrogacy laws will help people in their decision making process.

The consultation period closes on 27 September 2019.

Posted on: 06/06/2019

This article is for general guidance only. It provides useful information in a concise form. Action should not be taken without obtaining specific legal advice.

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