Recently there have been changes proposed to the law surrounding surrogacy jointly by the Scottish Law Commission and the Law Commission of England and Wales. It is hoped that these changes will bring the law up to date to the point where it better reflects modern views on surrogacy and the needs of all parties involved. These ideas have been warmly welcomed by the Advocates’ Family Law Association and are expected to reduce a lot of unnecessary worry when it comes to the process of having a baby through a surrogate.
Surrogacy is where a woman carries and gives birth to a child on behalf of another family. For many, this is the only way possible to have a chiId with a genetic link. Over the past decades, surrogacy has become an increasingly popular way to build a family. More and more individuals and couples are choosing to have a surrogate help bring a baby into their home, which is why improvements to the law are an absolute necessity.
While surrogacy is completely legal throughout the UK, the current law has some obvious faults. On top of the expected stress of becoming a new parent, the process currently in place also causes a lot of worry for those involved.
Legally, the surrogate mother retains guardianship over the newborn after the birth, meaning the baby may only be handed over to the intended parents with her consent. In pursuance of legal parenthood, the intended parents must obtain a Parental Order from the court. This will transfer parental rights as well as parental responsibilities. As a result of this process, the surrogate will lose her parental rights and responsibilities for the child. There are various requirements when applying for the Parental Order. Normally, the application must be made within six months of the child’s birth. However, the law states that the consent of the surrogate mother is paramount to the Parental Order, and such consent cannot be given until the baby is six weeks old. The surrogate mother will have to provide her consent (as will her husband or civil partner). The applicants of the Order must be husband and wife, civil partners of each other or two people who are in an ‘enduring family relationship’. The child must already be living with the parents when the application is made. Both applicants must be 18 years old, and at least one of the applicants must be domiciled in the UK. There is always a chance that the intended parents could choose not to go ahead with the Parental Order. This would leave this surrogate mother in an extremely distressing situation. While this would be uncommon, the possibility of it occurring puts a strain on both parties.
The current process of surrogacy lacks adequate regulation. Ensuring that all steps throughout the journey are of high standard and monitoring all those involved is extremely difficult. Without the aid of various safeguards and regulators, breakdowns of agreements between the intended parents and surrogate are more likely to occur.
The reason for the proposed changes is that, while our society and views have evolved, the law on surrogacy has been left in the past. The goal is to bring the legal side up to date in order to have it work most effectively. Surrogacy was introduced at a time when there was little knowledge of the subject and views towards it were, on the whole, negative. However, with the aid of advancements in assisted reproduction and a wider understanding and acceptance of surrogacy, it is now recognised as a legitimate way of building a family. It is hoped these improvements and the proposed new pathway will provide a sense of security and comfort for the intended parents, the surrogate, and, most importantly, the child.
One of the many proposed changes, and possibly the most notable one, is that the intended parents will become the legal parent of the child immediately at the birth. This will greatly benefit both parties. It allows the intended parents to start life with their new baby immediately, while simultaneously letting the surrogate begin the process of recovery without retaining legal responsibility for the child. However, this proposed change will not replace the parental order route. Should the surrogate exercise her right to object to the intended parents being the legal parents, they will then be required to apply for the order, where the court will then decide the optimal solution for the child’s welfare. This is to ensure the surrogate knows her voice is heard and her rights are respected.
To protect the rights of both the intended parents and the surrogate, new preconception safeguards will be brought in. This is a list of stricter requirements which must be met prior to entering a surrogacy agreement, including such conditions as attending medical screenings and seeking independent legal advice. Surrogate regulators and regulator organisations would continuously ensure standards are kept at a satisfactory level, meaning the intended parents and surrogate can feel safe throughout the whole process.
The reform is currently in the consultation period. Events open to all are being held throughout Scotland and the rest of the UK, with the aim of collecting recommendations from whomever feels interested and wishes to discuss the proposal further. This is to ensure all views are acknowledged in order to bring the project to a point where those impacted by the new law will feel satisfied with the changes. It is hoped that the final recommendations for the law reform will be released in a report in 2021. In addition, it is anticipated that draft legislation will also be published, which will set out the new law on surrogacy arrangements.
With surrogacy, seeking legal help is not only strongly advised, it will become a necessity as one of the proposed requirements on the new pathway. It is a complex process, which can often be very challenging. The introduction of improvements which better suit the expectations of those involved sets the journey of surrogacy out to be a simpler one, one which will be monitored by professional regulators. Having the process overseen by someone who is well versed in that particular area allows both the parents and surrogate to feel more protected. If you are unsure or concerned about any aspect of your surrogacy process, please do not hesitate to get in touch with the professionals at and they will aid you through any queries you have.
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