First published on Today's Family Lawyer on 5 April 2023 - Building families through surrogacy: A new law
The Law Commission of England and Wales and the Scottish Law Commission, on the 29th March, released their report and draft bill detailing a new pathway for intended parents creating their families through surrogacy.
As expected, a new pathway will be created for British Intended Parents (IPs) to become the legal parents of their surrogate born children from birth provided that certain eligibility criteria are met, and a framework of pre-conception safeguards are also met.
This turns the system on its head, as currently the surrogate and any spouse are the child’s legal parents at birth, requiring the IPs to go through a court process to change legal parenthood after birth, which can take many months.
During this period, the IPs do not have Parental Responsibility for the child that they are caring for (unless their surrogate was single and then only the biological father would have PR), which creates a period of limbo for the child with potentially disastrous consequences.
The Law Commissions have not only created this new pathway, but they have also recommended reforms to the current parental order process, which would remain the route to legal parenthood for those undergoing an independent surrogacy journey, where the surrogate has withdrawn her consent which takes the IPs out of the new pathway and into the parental order pathway, and for international surrogacy arrangements.
The New Pathway
- Surrogate must be at least 21
- IPs must be at least 18
- At least one IP must have a genetic link to the child
- IPs must be married, in a civil partnership or in an enduring family relationship
- At least one of the IPs and the surrogate must meet the test of connection with the UK – being either domiciled or habitually resident here.
The requirement for the surrogate to be connected to the UK is new (although surrogates in a UK arrangement would likely be living here in any event), as is the extension to include habitual residence. Previously, the IPs would have to prove that at least one of them was domiciled in the UK, a potentially complex legal and factual question. Showing habitual residence as the connection to the UK is likely to extend the eligibility to enter into surrogacy arrangements in the UK to more people.
to the above criteria, under the new pathway the following pre-conception safeguards must be completed. These provisions are entirely new, as currently the welfare assessment is carried out by a Parental Order Reporter (a member of Cafcass) after the baby is born.
- An agreement between the IPs and surrogate
- A pre-conception welfare assessment
- Independent legal advice for the IPs and surrogate
- Implications counselling for IPs and surrogate
- Enhanced criminal records check on the surrogate, her spouse/CP/partner, the IPs and anyone they live with over the age of 18
- Agreement of a Regulated Surrogacy Organisation (RSO) to admit the surrogacy agreement onto the new pathway.
Assuming all the above is complied with, on birth the IPs will be the legal parents, but the surrogate will have a period of six weeks to object. If she doesn’t object, then the IPs will be able to register the birth and they will be named as the parents, with no further requirement for a court process.
Currently, in England parents have 42 days (i.e six weeks) to register a birth, and in Scotland parents have only 21 days. In the original consultation the proposal was that the surrogate would have the registration period minus one week in which to object. This would result in a disparity between the two jurisdictions as English and Welsh surrogates would have five weeks to object and Scottish surrogates would only have two weeks to object. Rather than link the end point of the right to object with the current birth registration rules, the Law Commissions have recommended that surrogates have the full six weeks from birth in which to object in both jurisdictions. It is unclear what this will mean for IPs wanting to register the birth. Will IPs need to wait until the very last day before they can register the birth to enable the surrogate to exercise her right to object within the full six-week period, or will they be able to do so earlier if the surrogate makes it known that she does not intend to object? Will the birth registration requirements need to be reformed?
If the surrogate does object within the six-week timeframe then a court process will be required, but rather than the IPs making the application for the Parental Order (as was originally contemplated), in this scenario, the surrogate must make the application and convince a court why she should be the legal mother.
This is revolutionary. Currently, the surrogate’s involvement in the court process is simply to acknowledge receipt of the application and provide her written consent. If she does not provide that written consent, she need do nothing further as she retains her legal parentage and it is the IPs who must still make a court application, albeit they would not be able to apply for a Parental Order (as consent would not be forthcoming) but could apply for a child arrangements order.
In this new scenario, will the surrogate be required to foot her own legal bills in fighting the IPs? Presumably yes, which may put off surrogates from objecting who might otherwise want to.
However, the recommendations provide that if the surrogate withdraws her consent to the arrangement at any time from the time of treatment leading to conception to before the birth, then when the child is born, she will be the legal parent, as is the case now. This is important, as there needs to be certainty as to who a child’s parent is at birth.
If a surrogate withdraws her consent prior to birth, then it will be the IPs who need to apply for a Parental Order to gain legal parentage. Under the current law, they would not be permitted to make such an application as the court does not have the power to veto a surrogate’s refusal to give consent. However, under the new recommendations, the court will have the power to dispense with a surrogate’s consent.
This recommendation is also revolutionary. Whilst it is rare for surrogates to change their mind, there are cases where this happens and where the court is essentially hamstrung. By giving the court this new power, the judge can make decisions in the best interests of the child, thereby bringing surrogacy law into line with adoption law.
Importantly, one of the recommendations, both for the new pathway and in relation to reforming the current Parental Order process, is that the surrogate’s spouse will no longer be considered the second legal parent, meaning that their consent would no longer be required. This recommendation is to be welcomed.
Regulated Surrogacy Organisations
Currently there are several not-for-profit organisations who help IPs on their surrogacy journey. Their role is to match IPs to surrogates and to manage the process, but they are not regulated. Under the new pathway, these organisations will now be classed as Regulated Surrogacy Organisations (RSOs), regulated by the HFEA, much like fertility clinics. The HFEA would grant a licence to the RSO if they meet the licensing conditions, and they can be sanctioned for breach of those license conditions.
The role of the RSO will be to support all parties to the surrogacy agreement and act as gatekeepers to the new pathway. They will assess whether a surrogacy agreement meets all the eligibility criteria and pre-conception safeguards to enable the agreement to go ahead on the new pathway. This will be confirmed by the RSOs in a Regulated Surrogacy Statement to be signed by all parties and the RSO.
The Law Commissions have recommended that the HFEA draft a specific Code of Practice to guide RSOs. The RSOs will be responsible for maintaining records of the surrogacy arrangements on the new pathway and will be required to transfer those records to the HFEA within 12 weeks of the birth; the HFEA will add this information to the new Surrogacy Register.
The Surrogacy Register will be maintained by the HFEA and will record all surrogacy arrangements, whether on the new pathway or not. It will record non-identifying and identifying information about IPs and surrogates, details of the fertility clinics used, whether UK-based or overseas. Access to the Surrogacy Register by the surrogate-born child will be based on whether they live in England and Wales or in Scotland (the ages differ between those two jurisdictions).
These recommendations are to be welcomed as it goes to the heart of a child’s identity, while being able to easily access this information in one place is of clear benefit.
It is clear that the RSOs, under these reforms, will have significant responsibility to ensure that the criteria are met and that the surrogacy journeys are managed effectively. The HFEA will also need to invest time and money in ensuring that they are equipped to regulate the RSOs.
Reforms to the parental order process
The current parental order process will still apply to those undergoing an independent journey (for example, surrogacy between friends, family members or where surrogates and IPs have met through forums such as Facebook); it will apply if the surrogate changes her mind pre-birth (where the IPs will be the applicants); if the surrogate changes her mind post-birth and up to 6 weeks (where the surrogate will be the applicant); and for all international arrangements.
However, the Law Commissions have recommended certain reforms as follows:
- At least one of the IPs must be domiciled or habitually resident in the UK (the inclusion of habitual residence is new, and it will not be a requirement for the surrogate to be domiciled or habitually resident here, as they do in the new pathway criteria)
- The ability of the court to dispense with the surrogate’s consent will also apply to the parental order process as well as the new pathway.
- The surrogate’s spouse will not be considered the second legal parent as with the new pathway
- Information being admitted to the new Surrogacy Register would also apply but the information will be taken from the application forms, rather than provided by the RSOs as with the new pathway
Helpfully, the recommendations provide for clear and distinct categories of payments to surrogates which will be either mandatory or permitted under both the new pathway and the reformed parental order process, and specifically what categories of payments are not permitted.
Currently, the legislation simply says that the surrogate can be paid her “expenses reasonably incurred” without defining what reasonable expenses would be. This results in many varied interpretations of what would be reasonable.
The recommendations also include clarity on the method by which a surrogate is to be paid. Currently, this can be done in several ways, including paying upfront or reimbursing expenses. The recommendations now clearly state that IPs should reimburse actual costs paid by the surrogate, rather than providing a regular allowance, but with access to a “float” so that she is not out of pocket.
The categories of payments which are permitted are uncontroversial – additions such as a modest holiday for the surrogate and her family and modest gifts for the surrogate are to be welcomed. Often IPs want to do this for their surrogate but have been unsure whether this is permitted. Having this clarity is helpful, as is having categories of permitted payments, which should reduce any conflict in relation to what is a justifiable expense.
The recommendations extend to a surrogate being able to enforce and recover any category of payment that is permitted, which is not currently provided for in the law (although this would not extend to the holiday or gifts which would be discretionary).
The recommendations have also set out what payments are not permissible, and this includes general living expenses. Again, this clarifies something which has previously been unclear and where arrangements can either include or exclude this expense, depending on the particular agreement. The inclusion of criminal sanctions in relation to any payments of prohibited categories of payments is arguably a backwards step.
The entire premise of the Law Commissions recommendations is to promote domestic surrogacy, with the objective of encouraging more women to come forward as surrogates so that IPs chose a UK pathway rather than going abroad. Query, however, whether these recommendations as to the payment of expenses will have the opposite effect.
International surrogacy arrangements
Disappointingly, the Law Commissions have not gone as far as to recommend a system whereby surrogacy arrangements conducted in certain vetted countries will be automatically recognised, much like with international adoptions from certain listed countries. It was hoped that jurisdictions such as the US or Canada, with well-trodden surrogacy pathways, would satisfy the ethical standards, and would appear on such a list.
However, what the recommendations do set out are for a swifter exit process for international arrangements by recommending that the process to apply for a British passport or visa for the child is speeded up, by enabling a file to be opened and the application begun before birth, and for the basis of a visa being obtained for the child to be brought within the Immigration Rules to provide greater certainty.
As with legal parenthood, the recommendations also state that the surrogate’s spouse should not be considered the legal parent for nationality purposes, meaning that it will be easier for IPs who use a surrogate who is married to acquire British nationality from a genetically related British IP.
Helpfully, the Law Commissions recommend that the UK Government should provide a single, comprehensive guide for IPs explaining the nationality and immigration consequences of having a child through international surrogacy and for existing guidance to be updated to include the new pathway.
What has been left out?
Disappointingly, the Law Commissions have ignored the question of double donation. The law as it currently stands, and under the recommendations both for the new pathway and the reformed parental order process, requires at least one IP (if there are two) to be biologically connected to the child, and if there is a single IP, they have to be biologically connected. This means that where couples or single people who need to use a donor egg and donor sperm to create the embryo will still not be able to utilise the parental order process and will be required to adopt.
It was thought that the recommendations would permit double donation where it is medically necessary, but this does not appear in the report, and is a missed opportunity.
Overall, I welcome the recommendations. I believe it strikes the correct balance, ensuring both the interests of the surrogate and IPs are considered and, importantly, the rights of the surrogate born child is at the forefront of all involved parties.
Creating a new pathway which front loads the checks and balances prior to conception means that the process after birth is minimal, enabling the IPs and their baby, and the surrogate, to move forward with their lives as soon as the baby is born. The right of the surrogate to change her mind is protected, and if she does change her mind, then there is a reformed process to deal with this, which includes the ability of the court to investigate further and to decide what is in the best interests of the child, which has to be right.
The regulation of surrogacy agencies, bringing them into line with fertility clinics under the regulation of the HFEA, is a significant reform but further detail is needed as to how it will work in practice, especially since the RSOs will represent the interests of both the surrogates and IPs which might not always be aligned.
What will now be required is for the Government to consider the recommendations and the draft Bill and for the responsible Minister to provide an interim response within 6 months and a full response within 12 months.