Surrogacy laws set for reform

The Scottish Law Commission and the Law Commission of England and Wales have started work on a joint review of the laws on surrogacy. 

The project forms part of each Commission’s current Programme of Law Reform and the UK Government has referred the project to both Commissions as a joint project.  The Law Commission of England and Wales has now been granted the necessary funding by the UK Government.

Surrogacy is where a woman bears a child on behalf of someone else or a couple who then intend to become the child’s parents.

But the Commissions say that there are significant problems with the laws which govern this process.

The way in which parental orders are granted may create difficulties for new intended parents making medical decisions about the child. And the regulation of surrogacy requires improvement so that standards can be monitored and kept high.

Now, the independent law reform bodies will strive to make sure that the UK has surrogacy laws which work for everyone in the modern world.

Law Commissioner for England and Wales Professor Nick Hopkins said:

“Our society has moved on from when surrogacy laws were first introduced 30 years ago and, now, they are not fit for purpose.

 “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 said:

“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.”

Surrogacy law causing problems

Sometimes surrogacy can be the only way for people to have children with a genetic link to them. In the UK, it is becoming more common and it’s thought that the number of babies born via surrogacy could be 10 times higher than it was a decade ago.

The process is governed by the Surrogacy Arrangements Act 1985 and certain provisions of the Human Fertilisation and Embryology Acts 1990 and 2008. But there are problems with the law and the Commissions have already identified three potential areas of concern:

• difficulties with parental orders – a parental order transfers parentage from the surrogate mother to the intended parents. But that process can only happen after the baby is born and is subject to conditions which may require reform.
• international surrogacy – the uncertainty in the current law may encourage use of international arrangements, where there are concerns about exploitation of surrogates.
• how surrogacy is regulated – the rules governing how surrogacy is undertaken should be brought up to date and further improved.

The Law Commissions will now undertake a joint three-year project to develop law reform recommendations that work for everyone.  This will involve extensive public consultation, with the Commissions aiming to publish a consultation paper within a year.

Further information

A project on surrogacy was well supported during the Scottish Law Commission’s consultation for its current Programme of Law Reform and, as a result, forms part of its Tenth Programme of Law Reform. The project is part of the 13th Programme of Law Reform of the Law Commission of England and Wales. In the open public consultation which preceded it, over 340 people and groups said that the law was not fit for purpose.

The project will consider the legal parentage of children born via surrogacy, and the regulation of surrogacy more widely. It will take account of the rights of all involved, including the question of a child’s right to access information about their origin, and the prevention of exploitation of children and adults.

For further details, please see our project page.