Kara MacGregor-Duke

Surrogacy is when a woman carries and gives birth to a baby for another person or couple, known as the “intended parent(s)”. There are two types: full surrogacy, where the intended mother’s eggs are used; and partial, where the surrogate’s eggs are fertilised by the sperm of the intended father.

As societal norms have changed and families have diversified, so also has the acceptance of surrogacy and the number of children born in this way has increased almost fourfold over the past decade, with some organisations estimating 400 surrogate births a year.

However, the law surrounding this delicate and emotionally-charged area was written in the 1980s, when the practice was in its infancy, and the Law Commission of England and Wales has just published a joint report with the Law Commission of Scotland recommending a robust new system of governing surrogacy. This was released in April 2023.

Parliament will now consider the recommendations proposed, with a response to be prepared within 6 months. Thereafter a full response to this must be made within one year (April 2024). We are still a long way off any proposed changes becoming legislation, but the proposed reform is the biggest change to the laws and regulations surrounding surrogacy for many years.

It is generally accepted that the proposed changes are a significant step forward and will go a long way towards ensuring that the motivations of the parties involved remain primarily altruistic rather than commercial.

It is also hoped that the new recommendations will encourage intra-UK surrogacy agreements, reducing the potential exploitation of mothers in other countries and the associated ethical concerns and costs.

Essentially, the reforms outline a streamlined pathway to legal parenthood in domestic surrogacy arrangements. Currently intended parents must apply to the Court for a Parental Order after the child is six weeks of age. The law surrounding this will still follow Scottish laws being that any orders for a child must be in their best interests, and that the welfare of the child is of paramount consideration for the Court. As part of the current process, the surrogate mother must consent to the Parental Order being granted. In the absence of such consent, the Parental Order cannot be granted. One of the key features in the proposed reform is in respect of who would be the child’s legal parents at birth. Consent is key here.

Assuming consent is not withdrawn by the surrogate mother up to the child’s birth, the intended parents would be the legal parents at birth. If consent is withdrawn after 6 weeks of birth by the surrogate mother, she can apply to the Court for a Parental Order. If consent is withdrawn prior to birth the surrogate mother would be the legal parent at the child’s birth and the intended parents would require to apply for a Parental Order.

The reform also provides clarity on acceptable payments, known as “permitted payments” to a surrogate mother. These include expenses such as life insurance, travel, accommodation, medical appointments, modest gifts and loss of earnings, but preclude compensatory payments and living expenses such as rent.

The thinking is that the surrogate mother should not be better or worse off as a result of entering into the arrangement, and commercial surrogacy is expressly prohibited. Other reforms include:

A Surrogacy Register to hold information about the parties involved and address the lack of an adequate framework which would allow surrogate-born people to access information about their surrogate and intended parents.

New guidance on nationality and immigration to deal with international arrangements which pose the risk of a child facing a prolonged wait in a foreign country for the correct documentation to enter the UK. This would include the ability to open and start passport applications before a child is born.

Pre-conception safeguards, which are currently lacking, to protect the interests of all participants.

The Law Commissions’ report recognises that parents are living in a different world from the one in which the original laws were framed. The proposed reform is a positive step forward.

Kara MacGregor-Duke is an associate at Complete Clarity Solicitors and Simplicity Legal