Caroline Gillespie

“The current law is out of date, unclear and not fit for purpose”. This was one of the conclusions reached last year in a joint consultation document by the Law Commission of England & Wales and the Scottish Law Commission on UK-wide surrogacy law. This article considers the current law and some of the major reform proposals.

A child born today through a surrogacy arrangement has, as his or her legal parent, the surrogate. The spouse or civil partner of the surrogate would also be a legal parent of the child unless they did not consent to the surrogate’s treatment. A child may not have more than two legal parents. A child born through surrogacy may have only one legal parent, the surrogate. Assuming a married surrogate or surrogate with a civil partner and assuming consent of the spouse or civil partner to the treatment, the intended parent or parents of a child born through surrogacy will never be legal parents of the child unless they apply for and are granted a parental order by a court.

Parental orders remove legal parenthood from the surrogate and any spouse or civil partner and transfer that to the intended parent(s). Where two people apply for a parental order, one of them must be genetically related to the child. They must be husband and wife, in a civil partnership or in an “enduring family relationship” but not within prohibited degrees of relationship. From 3 January 2019, it has been possible for a single person, genetically related to the child, to apply for a parental order. A parental order cannot be granted unless the surrogate and any spouse or civil partner with legal parenthood consents to that. Such consent is not needed if the person lacks legal capacity to give it or cannot be found after all reasonable steps have been taken to find her or him. Consent may not be given until six weeks after the birth. The child’s home must be with the applicant(s) at the time the application for a parental order is made and at the time it is granted. The welfare of the child is the paramount consideration when the court is considering whether to grant a parental order.

The current legislation requires any parental order application to be made within six months of the birth. However, the courts have shown a willingness to side-step this law with regard to the child’s welfare by granting applications made after that period.

The law at present allows for payment by the intended parent(s) to the surrogate of “expenses reasonably incurred”. Typically these include medical costs and loss of earnings however the courts have previously authorised payment for the surrogate to have a post-birth holiday and for sums beyond expenses, particularly in the case of international surrogacies.

The law commissions propose enabling intended parent(s) in certain situations to become legal parent(s) with parental responsibility on birth. They propose that this should happen where certain eligibility criteria are met, including that parties have entered into a regulated surrogacy agreement with the particulars of surrogacy registered in a new national register of surrogacy arrangements. Further requirements include that the parties have had independent legal advice and attended counselling on the implications of entering into a surrogacy agreement and that the intended parent(s) make a declaration in the agreement that they intend the child’s home to be with them.

Medical screening and background criminal checks would also be needed. If the surrogate did not object within 14 days of the birth then the intended parent(s) would remain legal parent(s). This “new pathway” to legal parenthood would only be available for UK surrogacies. If the surrogate did object in the 14 day period, the intended parent(s) would be able to apply to the court for a parental order. If the intended parent(s) intended to apply for a parental order then they would continue to have parental responsibility for the child where the child is living with, or being cared for by, them.

The law commissions also propose abolishing the six-month rule for parental order applications and put forward certain possible ways to bring greater clarity to the law on payments. In cases of medical necessity, they further propose that “double donation” is permitted thereby removing the requirement for a genetic link with an intended parent.

Surrogacy arrangements are one of the matters reserved to the UK parliament. It remains to be seen whether, and if so when, legislation will be introduced to change the law in this area.

Caroline Gillespie is partner and head of family law at BLM in Scotland