UK Surrogacy laws under review

The number of children born via a surrogate is thought to be as much as 10 times higher than it was just a decade ago. Celebrities like Kim Kardashian and Kanye West recently chose to use a surrogate to carry their third child, leading to more awareness of surrogacy as an option, and a review into the laws surrounding the practice will be welcomed by family law practitioners.

In the UK, surrogacy is governed by the Surrogacy Arrangements Act 1985 and certain provisions of the Human Fertilisation and Embryology Act 2008. This means that most of the law surrounding surrogacy haven’t been changed for over thirty years – and need updating to keep up with changes in society and reproductive technology.

Government funding has been agreed for The Law Commission of England and Wales and the Scottish Law Commission to look into a few major areas of concern, which include;

  • parental orders
  • international surrogacy and 
  • surrogacy regulation.

Parental orders are a major worry because although once a baby is born it’s possible to make an order that transfers parentage from the surrogate mother to the new parents, an order currently can’t be granted until the child is six weeks old. This can lead to problems – for example, the intended parents of a surrogate child can’t legally make any medical decisions about their child until the parental order has been granted, and the delay before the order can be made can be an anxious time for all concerned. There are also conditions attached to a parental order that need reviewing.

Many prospective parents look into the options of international surrogacy partly because of the conditions that exist within current UK law, which highlights the potential for exploitation of surrogates from foreign countries. The regulation of surrogacy and the rules which govern it certainly need to be updated and improved to make sure that they work for all parties involved.  The current laws are no longer fit for purpose, according to Law Commissioner for England and Wales Professor Nick Hopkins, who said: 

For many, having a child is the best day of their lives and surrogacy can be the only option for some who want a genetic link to the baby. But the issues are difficult and there is no quick fix. Now we want all those with an interest to get involved and help us make the law fit for the modern world.” 

Scottish Law Commissioner David Johnston QC agrees, and added,

Surrogacy is becoming more common every year, so it’s important that we have the right laws in place to protect all involved. That’s why we’ll be consulting widely to make sure we have surrogacy laws that work for the parents, the surrogate and, most importantly, the child.” 

The project is expected to take three years, and will involve extensive public consultation, as the Law Commissions work together to develop solutions that work for everyone. The project will look carefully at issues including the legal parentage of children born via surrogacy, and the wider regulation of surrogacy. It will take account of the rights of everyone involved in a surrogacy agreement, including the child and their right to know about their parentage.

For more information, you can email the Law Commission: propertyandtrust@lawcommission.gov.uk 

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