Surrogacy

Commissioner

Professor Gillian Black

Team members

Alastair Smith, Project Manager
Nic Vetta, Legal Assistant

On 29 March 2023, with the Law Commission of England and Wales, we published our Joint Report, Building families through surrogacy: a new law. This is in three volumes: Volume 1: Core Report  (which details our main proposals), Volume 2: Full Report (which contains fuller detail of those proposals, together with discussion of consultation responses); and Volume 3: Draft Surrogacy Bill.  A summary of the report and explanatory notes to the draft Surrogacy Bill are also available, together with an Impact Assessment and Equality Impact Assessment screening document.

On 8 November 2023 Maria Caulfield MP, Parliamentary Under-secretary of State at the Department of Health and Social Care, provided the Chair of the Law Commission of England and Wales with the UK Government's interim response, stating that parliamentary time did not allow for our proposals to be taken forward at the moment.

The Report and draft Bill outline a new regulatory regime for surrogacy that offers increased clarity, safeguards, and support. By placing the best interests of the child at the heart of reforms and introducing pre-conception screening and safeguarding measures for the surrogate and the intended parents, we can respect the shared intentions of the parties to the surrogacy arrangement by recognising the intended parents as the legal parents at birth.

The cornerstone of our recommendations is the introduction of the “new pathway”, which will enable intended parents to be the legal parents at birth. It will involve screening and safeguarding checks before conception, allowing meaningful scrutiny at an early stage by a regulated surrogacy organisation, rather than the current law, which only involves scrutiny by the court after the child is born. Our reforms respect the autonomy of the surrogate – if she withdraws her consent, the courts will make the final decision on parental status. Our reforms also keep the existing need for a genetic link between at least one of the intended parents and the child so that “double donation” is not permitted.

Our recommendations also ensure that surrogacy remains non-commercial by prohibiting payments to the surrogate for carrying or delivering the child, ensuring that surrogacy agreements remain unenforceable, and requiring surrogacy organisations to operate on a non-profit-making basis. The current law on the payments that intended parents can make to surrogates is unclear. We recommend changes that will clearly set out the payments intended parents are permitted to make. Importantly, we recommend that payments should be made to reimburse the surrogate for costs she incurs arising from the surrogate pregnancy: but payments for carrying the child and living expenses are prohibited. A woman who becomes a surrogate should be no better or worse off financially from doing so. .

We also recommend the creation of a Surrogacy Register, which will enable surrogate-born people to access information about their origins. This may have practical value in helping them to understand their genetic and gestational heritage for health reasons and positively contribute to the quality of family relationships

Taken together, our recommendations for a reformed surrogacy law respect the intentions of all parties, safeguard against exploitation, and place the best interests of the child at their heart.

Contact

If you require any further information about the surrogacy project, please email:  info@scotlawcom.gov.uk.