National Surrogacy Week: Proposed Law Reform

In this article and to round off National Surrogacy Week, Senior Associate Kara Swift provides a detailed review of the Law Commission’s recommendations for a new system to govern surrogacy.

The Law Commission of England and Wales published a joint report with the Scottish Law Commission on 29 March 2023 following a public consultation in 2019 to which FLiP contributed.

The current law on surrogacy is outdated and insufficient for meeting the needs of intended parents, surrogates and children of the surrogacy process.  Surrogacy is increasingly becoming an option for those who cannot conceive, carry a foetus or deliver a baby and this is to some extent reflected in the number of parental orders being made in England having quadrupled since 2011.  However, the process through which intended parents have to apply for the transfer of legal parentage in the UK (even following an international surrogacy arrangement where they may have different laws about parentage) can leave everyone involved; the child, intended parents and surrogate at risk and families in limbo.

The Law Commissions’ report and draft legislation outlines a new regulatory regime for surrogacy.  The Law Commission suggests that their recommendations (discussed in more detail below) offer clarity, safeguards and support for everyone. Whist it is undeniably a big step in the right direction, could this have been the time for a real overhaul of the law and chance to give those in the UK a domestic surrogacy process that removes the drive to go overseas?

THE PROPOSED REFORMS

A new regulatory pathway to legal parenthood

A new regulatory route for Regulated Surrogacy Organisations to review surrogacy agreements in the UK (where at least one of the intended parents or surrogate are domiciled or habitually resident and the procedures takes place in the UK) and admit those that meet the criteria on to a ‘pathway’ under which the intended parents are the child’s legal parents from birth without the need for a parental order.

This centres around the creation of non-for-profit licensed Regulated Surrogacy Organisations (“RSO”) regulated by the Human Fertilisation and Embryology Authority (“HFEA”) and would ensure that surrogacy continues to operate on an altruistic, rather than a commercial basis. They will support all of the people involved in the surrogacy agreement and act as gatekeepers to the new pathway by:

• Checking the mandatory pre-conception screening including medical checks, enhanced criminal record checks, implications counselling, legal advice and assessment of the welfare of the child (in line with the assessments that are currently carried out by fertility clinics under the existing HFEA Code of Practice);

• Completing the Regulated Surrogacy Statement recording the agreement between the intended parents and the surrogate that the intended parents will hold legal parental status from the birth of the child, the intention for the child’s home to be with the intended parents, evidence all the screening and safeguarding requirements, describe the permitted payments to be made by the intended parents to the surrogate and contain information on the fertility clinic, surrogate, intended parents, and any gamete donors for inclusion on the Surrogacy Register after the child’s birth. This would be signed by the intended parents, surrogate and RSO.  It would not be a contract or enforceable but a mandatory form of an expression of intentions on entering into the surrogacy agreement;

• Overseeing the surrogacy arrangement on the pathway whilst supporting the surrogate and intended parents; and

• Transferring the Regulated Surrogacy Statement to the HFEA within 12 weeks of the child’s birth to be entered onto a Surrogacy Register.

Right to withdraw and parental responsibility

At any point from conception to six weeks after the birth of the child the surrogate can still withdraw her consent.

On the new pathway the surrogate will retain parental responsibility for six weeks after the child is born despite not being the legal parent.

On that basis:

• If consent is withdrawn after treatment leading to conception but before birth then the surrogate is the legal parent at birth, one of the intended parents may also be a legal parent under the current law otherwise the intended parents must apply for a parental order within six months of the birth if they wish to obtain legal parental status instead of the surrogate and the court decide what is in the best interests of the child’s lifelong welfare.

• If the surrogacy arrangement goes to plan the intended parents are the legal parents at birth, they acquire parental responsibility when the child is born, however, the surrogate also has parental responsibility which automatically comes to an end six weeks after the birth of the child.

• If consent is withdrawn within six weeks of birth then the intended parents are the legal parents at birth, not the surrogate, however they will all have parental responsibility and the surrogate must apply for a parental order within six months of the birth if she wishes to obtain legal parental status instead of the intended parents. They will all retain parental responsibility until the court decide what is in the best interests of the child’s lifelong welfare.

Birth registration and Surrogacy Register

In developing the recommendations it became apparent that the Law Commission’s preferred model for birth registration is not compatible with UK Government policy on birth registration.  They accordingly set out two separate alternative models of birth registration in the report for the Government to consider:

Preferred model

Intended parents who have used the new pathway will be able to register the birth of the child. They will show the registrar the Regulated Surrogacy Statement and make a statement that the surrogate has not withdrawn consent then be named as the child’s parents (rather than “mother” or “father”) on the birth certificate.  However, if the surrogate had withdrawn her consent before the birth of the child, she would register the birth instead.

The full birth certificate will be marked to show that the birth was the result of a surrogacy agreement, but the short birth certificate won’t disclose the fact of the surrogacy.

Alternative model

The surrogate, not the intended parents, would be registered as the child’s mother on the original birth certificate. The intended parents or the surrogate would be able to inform the registrar of the birth, provide the Regulated Surrogacy Statement, make a declaration that the surrogate has not withdrawn her consent then at the end of the six-week period a parental order certificate will automatically be issued to the intended parents, showing them as the parents.  The original birth certificate with the surrogate registered as the child’s mother (although not the child’s legal parent) would be sealed at that point so it is only accessible once the child reaches a certain age.

Separate to the birth registration process, a new Surrogacy Register will be created and maintained by HFEA to record information for all surrogacy agreements whether on the new pathway or following the parental order process, domestic or international, gestational or traditional.  The information will be recorded in the Regulated Surrogacy Statement and transferred to HFEA to register under the new pathway or be provided as part of the application for a parental order which the court then sends to HFEA once the process is complete. The information will be recorded on the Surrogacy Register whether or not the parental order was granted.

This register would give children born through surrogacy the opportunity to trace their origins when they are older. In England and Wales a surrogacy-born person should be able to access non-identifying information at 16 and identifying information at 18 with the opportunity to receive counselling about the implications of accessing the information at a suitable opportunity.  Identifying information will include the details of the fertility clinic, surrogate, intended parents, and any gamete donors, making clear who contributed the gametes (with reference to the HFEA Register of donor conception if their identity is already recorded there). The court will be able to dispense with the requirement for anonymously donated gametes used in international surrogacy arrangements. Non-identifying information may include a physical description of the parties, their marital status, or ethnic group.

 Reforms to parental orders

Despite the proposed introduction of the new pathway, some intended parents would still need to obtain a parental order through the courts in order to become legal parents.  Changes to the new process for obtaining a parental order would include:

• There being a habitual residence / domicile test at the time the application is made and when the parental order is granted but it would only apply to the intended parents so that international surrogacy arrangements can be accommodated;

• Intended parents would acquire parental responsibility automatically where the child is living with them or being cared for by them;

• Cases are allocated to a District Judge (rather than Magistrates) due to the likely complexity of the application if it did not follow the new pathway;

• Where the welfare of the child requires it, the court should be able to dispense with:
• the six month timeframe from birth within which an application must be made; and
• the requirement that the surrogate consents to the parental order.

• The Court provides the information for the Surrogacy Register.

New rules on payments

Whether on the new pathway or applying for a parental order, there would be the following categories of payments:

1. Payments which the intended parents must offer to make unless the surrogate wishes to make them herself:

• Life assurance and critical illness cover from the commencement of any fertility treatment for two years from the point of conception; and

• Costs of meeting the screening and safeguarding requirements on the new pathway.

2. Payments the intended parents are permitted to make to the surrogate based on her actual costs rather than an allowance paid on a regular basis (although a float can be provided to cover likely costs so long as it is reimbursed if not used) and which the surrogate can enforce and recover through the courts including:

• Medical and wellbeing costs and costs associated with pregnancy support e.g. vitamins, private medical care, antenatal classes, additional dietary requirements, domestic support costs such as cleaning or additional childcare;
• Travel costs for purposes linked to the agreement; and
• Recouping the difference between her usual earnings and any maternity pay or sick pay for time that she takes off including commission or overtime that she doesn’t get due to pregnancy. Additionally, loss of earnings for up to two weeks for a person who take time off work to support the surrogate post-birth.

3. Permitted payments that the intended parents may make to the surrogate which are closer to a gift and not intrinsically connected to the pregnancy so are not enforceable by the surrogate:

• A recuperative holiday for the surrogate and her family; and
• Gifts of a modest (and usually sentimental) nature

4. Prohibited payments:

• For carrying the child or “handing over the child”;

• Compensation for any pain and inconvenience;
• General costs of living that the surrogate would need to incur if she was not pregnant, such as rent or mortgage, utility bills, entertainment subscriptions, or general groceries.

Any permitted payments whether recoverable or not will need to be reported to the RSO for recording in the financial annex to the Regulated Surrogacy Statement or to the court where a parental order is sought.  The categories of payments and maximum amount for each will be recorded in the Regulated Surrogacy Statement. The court will look at payments made from a year before the surrogacy agreement was entered into, up until the order is made. This is in line with the principle on the new pathway that payments should be regulated during the period when the surrogate may decide whether or not to give her consent, so that they do not influence her decision.  The courts will also still have the ability to retrospectively authorise payments which are not permitted in order to make the parental order.

International surrogacy agreements

With the new legal pathway being only available to domestic surrogacy, those who do opt for international surrogacy arrangements will still need to apply for a parental order.  Recommendations to help UK intended parents include:

• HM Passport Office and UK Visa and Immigration Service should change their operating practice to allow the opening of a file and beginning of an application for a surrogate-born child prior to their birth, whether in relation to an application for the registration of a child as a British citizen, or an application for a passport, visa or Form for Affixing a Visa;

• The current provision for entry clearance outside of the Immigration Rules where the intended parents are not the legal parents of the child under nationality law should be brought within the Immigration Rules;

• It should be made clear within the Immigration Rules that the grant of a visa to the child born of a surrogacy arrangement should not be dependent on the child breaking links with the surrogate nor should the conditions for the grant of the visa prevent the child having contact, and an on-going relationship, with the surrogate; and

• The Government should provide a single comprehensive guide for intended parents explaining the nationality and immigration consequences of having a child through an international surrogacy arrangement, and existing guidance should be updated to include an explanation of the new pathway.

Other notable recommendations

• As part of the new pathway, intended parents and the surrogate should receive independent legal advice on the consequences of their surrogacy agreement. Regulated legal professionals should be able to charge for negotiating, drafting, and advising on surrogacy agreements. They will also be able to advertise these services.

• For those both on the new pathway or where the parents will apply for a parental order RSOs will be able to match individuals to form surrogacy agreements in exchange for payment. The matching and facilitation would be classed as “services provided with a view to assisting an individual who wants to enter into a surrogacy agreement to find another individual and allowable.  RSOs will also be able to advertise their services.

• The surrogate’s spouse or civil partner, if she has one, will no longer be the legal father or second parent of a child born as a result of a surrogacy agreement whether on the new pathway or where a parental order is required.

• One of the eligibility conditions recommended for surrogacy agreements both on the new pathway or the subject of a parental order is that at least one of the intended parents has a genetic link to the child which is contrary to the recommendation of Surrogacy UK who maintain that intended parents who have used neither of their gametes (‘double donation’) should still be able to obtain a parental order.

Conclusion

The Government’s response to these recommendations is awaited.  Protocol should mean that the Government will issue an interim response within six months of this report which should be by the end of September 2023, and a full response within a year setting out which recommendations the Government accepts, rejects or intends to implement in a modified form, and when.  It remains to be seen how much Parliamentary time will be spent discussing this, especially as it comes not long before the next general election but FLiP share the Law Commission’s hope that the Government will endorse the very necessary reform and that it will be feature in the manifestos for the next general election.

Kara is a Senior Associate at Family Law in Partnership. She advises on all aspects of private family law, supporting a wide range of married and unmarried clients following separation to resolve matters relating to their children, finances and property rights with diligence and care. Kara has a particular interest in the law relating to surrogacy. She ran an awareness campaign at FLiP for National Surrogacy Week 2023 and has recorded a podcast with a barrister specialising in this field of law which can be accessed here.