3-year project to modernise UK surrogacy laws

The Law Commission of England and Wales and the Scottish Law Commission have started work on a review of the laws around surrogacy.

Surrogacy is where a woman bears a child on behalf of someone else or a couple, who then intend to become the child’s parents.

The independent law reform bodies will strive to make sure that the UK has surrogacy laws that work for everyone in the modern world.

Law Commissioner for England and Wales Professor Nick Hopkins: “Our society has moved on from when surrogacy laws were first introduced 30 years ago and, now, they are not fit for purpose. For many, having a child is the best day of their lives and surrogacy can be the only option for some who want a genetic link to the baby. But the issues are difficult and there is no quick fix. We want all those with an interest to get involved and help us make the law fit for the modern world.”

Surrogacy is becoming more common every year, so it is important that the right laws are in place to protect all involved.

Sometimes surrogacy can be the only way for people to have children with a genetic link to them. In the UK, it is becoming more common and the number of babies born via surrogacy could be 10 times higher than it was a decade ago.

The Surrogacy Arrangements Act 1985 and the Human Fertilisation and Embryology Acts 1990 and 2008 govern the process. But there are problems with the law including:

  • a parental order transfers parentage from the surrogate mother to the intended parents. But that process can only happen after the baby is born and is subject to conditions that may require reform
  • international surrogacy means the uncertainty in the current law may encourage use of international arrangements, where there are concerns about exploitation of surrogates
  • the rules governing how surrogacy is undertaken should be brought up to date and further improved

The Law Commissions will undertake a joint three-year project to develop law reform recommendations that work for everyone. This will involve extensive public consultation, with the Commissions aiming to publish a consultation paper within a year.

The project will consider the legal parentage of children born via surrogacy, and the regulation of surrogacy more widely. It will take account of the rights of all involved, including the question of a child’s right to access information about their origin, and the prevention of exploitation of children and adults.

With more people facing fertility issues and couples increasingly seeking alternative routes to have children, there are more UK families created through surrogacy. In the last three years, the number of children being born through surrogacy has almost tripled, according to figures from the Ministry of Justice Family Court.

The number of UK couples choosing surrogates abroad is also increasing. International organisation Families Through Surrogacy says that over the last three years, more than 1,000 British couples have secured the services of surrogates overseas, the highest number from any European country. There are however many legal issues couples need to consider and address to ensure the process runs as smoothly as possible.

Lawyers in England and Wales cannot help couples enter into surrogacy arrangements, so parents should take legal advice in the country where they are engaging a surrogate to ensure that as parents, they are protected.

Surrogacy agreements are not enforceable in England and Wales so if things go wrong and the surrogate mother refuses to give up the child there is no UK legal recourse. The agreement may be enforceable where the surrogate gives birth.