In this article Family Law in Partnership senior consultant Pamela Collis examines the Law Commission’s proposals to reform the law relating to surrogacy.
Surrogacy is the practice of a woman (“the Surrogate”) becoming pregnant with a child that may or may not be genetically related to her, carrying the child, and giving birth to the child for another family (“the Intended Parents”). Surrogacy is on the increase (for instance, fertility in Europe has dropped by about 50% in the last 40 years). The first successful birth through a gestational surrogacy arrangement took place in 1985.
Under the current UK law the Surrogate becomes the child’s legal mother at birth and, if the Surrogate is married, her husband becomes the legal father of the child at birth. The Intended Parents must apply for a Parental Order after the birth of the child to become the legal parents. This creates expense, uncertainty and sometimes very tricky outcomes where there is a delay.
In 2011 117 Parental Orders were granted in England and Wales. By 2018 that had increased to 367. In the same year, only 15 Parental Orders were granted by a Scottish Court and in Northern Ireland, only 5. However these figures are incomplete because, in practice, not every Intended Parent will apply for a Parental Order. Under the current law some of the legal outcomes of surrogacy arrangements are very poor.
The law covering surrogacy flows from the Human Fertilisation and Embryology Act 1996 – it is arguably in need of updating and reform. Issues are varied but in particular Intended Parents complain that the delay in being granted legal status is unhelpful, the expense of surrogacy (mainly payments to the Surrogate) is prohibitive and the definition of expenses “reasonably incurred” is uncertain and unclear. In relation to international surrogacy, the risk of statelessness, immigration issues in taking a child into the Intended Parent’s home country, and the risks of exploitation are legion.
The Law Commission is therefore promoting exciting and interesting reforms (but they really only cover part of the picture as the Law Commission thinks a number of matters will have to be dealt with in conjunction with the legislation covering IVF arrangements which is outside the remit of their current consultation).
In particular, the Law Commission promotes and is seeking views on:-
- The creation of a new “Pathway to Parenthood” which will not be available for international surrogacy (there being an emphasis on home grown surrogacy as more regulated and safe);
- The Pathway to Parenthood would involve Intended Parents registering with a clinic and being subject to satisfying HFEA’s requirements. However they would become the legal parents at birth and, perhaps most importantly of all, HFEA would provide details of the surrogacy arrangement to the new register of information which is to by maintained by HFEA.
The current state of the law is that whilst a surrogate child should be able to obtain information about a sperm or egg donor, information about the surrogate mother will not be forthcoming unless the child has significant information and the arrangement was supervised at a registered clinic. What information will be available, even if the child is born under the supervision of a registered clinic, is hit and miss, depending on who the donors are etc.
Under the current law it is also perfectly possible for a child not to know that it is the subject of a surrogacy arrangement at all if it has only ever seen its short birth certificate and not its long birth certificate.
If however the new Pathway to Parenthood were adopted, the Intended Parents would appear as the parents on the child’s original birth certificate. In order to ensure that a child can have access to information about their origin, the proposal is that the full (not short) birth certificate of the child should note that he or she was born as a result of a surrogacy arrangement (without providing information as to the identity of the Surrogate); and this information would instead be recorded on a new National Register of Surrogacy Arrangements.
The new National Register of Surrogacy Arrangements would record the identity of the Intended Parents, the Surrogate and any other gamete donors, making it clear who contributed gametes. The Register would record if the Surrogate’s own egg had been used in a traditional arrangement, or if the Intended Parent’s own gametes are used etc. The Register would be maintained by HFEA and would record information, not only where there has been a Clinic involved, but where there has not.
Astonishingly HFEA reports that it has never received any request from any surrogate child for information. Of course there may not be all that many adults of Surrogates as even the first surrogate children will be largely under 18 years old still. The risk of a surrogate child marrying a close DNA relative would be dramatically reduced with these reforms and a sense of order would return to what has been somewhat haphazard arrangements to date.
The Law Commission are concerned that their proposed reforms might increase the costs of surrogacy and this would put it beyond the reach of many.
Pamela Collis is a consultant at Family Law in Partnership. She is a very senior and highly regarded family lawyer having specialised in family law for over 35 years. Pamela is known for her pragmatic and constructive style and her strategic vision. If you would like advice or assistance in relation to any of the matters discussed in this article, please contact Pamela Collis at T: 020 7420 5000 or E: hello@flip.co.uk