Surrogacy law reforms

Surrogacy law reforms

The landscape for people seeking to build a family has shifted over the years, and it’s not unusual that the use of a surrogate is a welcome option for those wishing to have a child.

The positive news is that the Law Commission of England and Wales and the Scottish Law Commission have today (29 March 2023)  published reforms for Government to improve the outdated surrogacy laws.

What happens if I want to have a child via a surrogate now and before the law changes?

The current law governing surrogacy is contained within the Human Fertilisation and Embryo Act 2008. This provides guidance about how you can be recognised in law as a child’s parent. At the current time, to become a legal parent for a child, you must obtain a Parental Order. The process means going through a lengthy, stressful and tiring journey simply to secure recognition as a parent in the eyes of the law. In summary, the criteria to secure a Parental Order, can be set out as follows:

• Conception must have taken place artificially and the child must be genetically related to at least one of the intended parents. DNA testing can prove a genetic link.
• Intended parents must be married or in an enduring family relationship.
• Any application must be made within 6 months of the child being born.
• The child must be living with the intended parents at the time of the application.
• The applicant(s) must be domiciled in the UK.
• The surrogate must consent to the Parental Order being made. This criteria is established by a Parental Order Reporter from CAFCASS obtaining the consent from the surrogate and making sure the consent has been given freely and with full understanding of what is involved.
• No money can be exchanged other than ‘reasonable expenses’.

What do the changes mean and what are the surrogacy reforms suggested?

Under the current law, parents have increasingly found themselves involved in a complex process that can take up to a year to secure a Parental Order. It therefore comes as no surprise that the intended reforms are a welcome change. As a starting point, and if approved by the Government, where right conditions are met (pre-conception screening and safeguarding), intended parents can become the legal parents of the child from birth, subject to the surrogate’s right to withdraw her consent. It is proposed that some parents will still need to obtain a parental order through the courts in order to become legal parents for example where the surrogate does not consent. We can offer advice and support where this may happen and your options.

Can I use an overseas surrogate?

It’s not unusual for couples to choose international surrogacy agreements although this carries various risks which cannot be ignored. The reforms look to deter people from such agreements by implementing a more streamlined process.

Contact

If you have a query regarding the reforms on surrogacy laws and what this mean for you or anything else raised in this blog, please do not hesitate to contact the Family Team at David Gray who can offer advice and provide specialist advice regarding your circumstances on 0191 232 9547.

For more information view the Law Commission website.