Calls for the overhaul of ‘outdated’ surrogacy law

Calls for the overhaul of ‘outdated’ surrogacy law

Pic: Toshiyuki IMAI from Flickr

Those having children through surrogacy should become legal parents upon the baby’s birth, the Law Commission recommended in a consultation published last week.

Under the current laws, the birth mother is automatically the legal mother. So called ‘intended parents’ must wait until the child is born and then apply for a court order within six months to become the child’s legal parents. This delay can cause significant practical and psychological difficulties, preventing intended parents from authorising medical treatment for their child for example.

The consultation, published by the Law Commission of England and Wales and the Scottish Law Commission seeks to replace existing law with a new ‘pathway’ to legal parenthood. Other key proposals include, the introduction of a regulator to oversee surrogacy organisations, the removal of the requirement for a genetic link between the intended parents and child and the creation of a register to allow people to find out information about their origins.

The current law governing surrogacy dates back to the mid-1980s. The precise number of surrogate births remains unknown, but evidence suggests it has risen drastically since 2011. In 2016, there were approximately 400 parental order proceedings in the courts of England and Wales.

The most recent development became effective in January 2019, when it became legal for a single person to apply for a parental order following Sir James Munby’s judgement in the case of Re Z(2016). The consultation does not propose the commercialisation of surrogacy, but asks for public views regarding payment to surrogates. Currently, surrogates are permitted to be given ‘reasonable expenses’, which his widely interpreted by the courts.

Sir Nicholas Green, chair of the Law Commission commented: ‘The laws around surrogacy are outdated and no longer fit for purpose. We think our proposals will create a system that works for the surrogates, the parents and, most importantly, the child.’ Dustin Lance Black, a surrogate father and campaigner (whose surrogacy podcast series can be found here) welcomed the proposals: ‘Good, clear law helps people make stronger, clearer decisions. Solid, definitive surrogacy law in the UK will have the power to keep surrogates, egg donors, intended parents, children, and families safe. This consultation is vital for ensuring the UK succeeds in building the best surrogacy law in the world.’