UK surrogacy law review says major changes needed – but campaigners say it doesn’t go far enough

The Law Commission has recommended major changes to UK surrogacy law to make things simpler for intended parents – but campaigners say more is needed.

In a review commissioned by the government, the Law Commission of England and Wales and the Scottish Law Commission proposed a new pathway to legal parenthood which would mean intended parents have parental rights from birth.

Currently, intended parents must wait to obtain a court order, which should take six week but in reality can be much longer. Under the proposals, intended parents would have those rights from birth – though the surrogate would be able to withdraw her consent and assert parental rights until six weeks after birth.

The recommendations do not cover international surrogacy or “double donation” – where both donor sperm and an egg are used.

There are also no plans to legalise paid-for surrogacy in the UK. While intended parents are able to cover limited costs including medical costs and to cover loss of earnings, they are not allowed to help surrogates with costs including rent, and can’t otherwise compensate them.

As the report outlines, the use of surrogacy has increased in recent years.

But as Professor Nick Hopkins, family law commissioner at the Law Commission, told PinkNews, the current legislation is nearly 40 years old and “doesn’t really work in the interests of any of the parties involved”.

“Our recommendations are designed to put in place a better framework of regulation that acts in the best interests of the intended parents, the surrogate, and most of all children born through surrogacy,” Hopkins said.

Father and surrogacy advocate Michael Johnson-Ellis “welcomed” the reforms and described the fact intended parents will have rights from birth – as opposed to going through a parental order process – as a “big win”.

“What it is doing is certainly providing equitable access to parenthood from birth, and that was that was something that obviously never existed previously,” Johnson-Ellis, co-founder and co-CEO of My Surrogacy Journey, told PinkNews.

“The full report definitely shows more balance with between LGBTQ+ and heterosexual intended parents.”

However, he noted more could be done to improve the law even further, including “more stringent processes” to protect intended parents when engaging with international surrogacy and enabling parental rights of those using double donation.

Currently in the UK, intended parents are unable to apply for a parental order after a child is born if they do not have a biological link to them. Johnson-Ellis described this as a “blow” for those couples who may need both a donor sperm and egg to create a child.

Professor Gillian Black, commissioner at the Scottish Law Commission, told PinkNews the proposed reforms aim to be as “inclusive as possible” for LGBTQ+ people seeking to be parents via surrogacy.

“There’s a wide range of reasons why people need to use surrogacy and we think that the regime that we recommend – with the registered regulated surrogacy organisation at the heart of it – will really help support people whatever their background, whatever their need for surrogacy is, and in quite an inclusive way,” she said.

NGA Law and Brilliant Beginnings, which work together to campaign for UK surrogacy law reform, welcomed the recommendations as a “positive step forward” for those going through surrogacy.

However, the groups are “disappointed” that the proposals are “not the sea-change reform” they had hoped for, specifically in relation to those who go overseas for surrogacy.

“The Law Commission’s proposals make no significant changes to the current law on international
surrogacy and so will do nothing to help those parents or their children,” they told PinkNews.

“Neither do they address the bigger picture, which is what is driving so many parents overseas.

“Under the reform proposals, UK surrogates will retain a legal right to withdraw consent to the intended parents being the legal parents of their children until six weeks after the birth. 

“The continued lack of legal security will do nothing to encourage intended parents to choose UK surrogacy over arrangements in places like the USA where surrogacy agreements are legally recognised and enforceable.”

Richard Scarlett is a parent to two children born through US surrogacy.

He told PinkNews: “The government’s main justification for prohibiting commercial surrogacy in favour of an altruistic approach is the worry that commercialisation could lead to exploitation.

“This is simply not true. You just need to look at countries with a long-established framework for commercial surrogacy – such as the US – to understand the positive impact that regulation, contractual recognition, and a protective legal environment can have on the surrogacy model. It’s why so many intended parents embark on their journeys there, rather than the UK.

“If the UK is truly keen to level the playing field for intended parents, it should look to commercialisation of surrogacy as a next step. Regulated agency setups, standardised surrogate compensation and controlled intended parents costs, and a more welcoming legal environment pre- and post- birth, including fully enforceable surrogacy agreements, is the only way that I could see this happening. Many of us were hoping to see at least some of these elements as part of the reform, and I’d hope that we don’t have to wait another 30 years for that to happen.”

UK surrogacy review: What could change?

Under the proposed reforms, both groups put forth a new system which would govern surrogacy agreements – called ‘the new pathway’.

The new pathway would see the scrutiny of arrangements beginning pre-conception. It would be overseen by non-profit organisations operating under a regulatory body. 

The pathway would undertake “rigorous” pre-conception screening and safeguarding assessments which, if conditions are met, would allow the intended parents to become the child’s legal parents from birth, subject to the surrogate’s right to withdraw her consent.

The Law Commissions believe this new system would radically improve the current process for all parties. 

As well as the new pathway, a surrogacy register would be created, enabling children to trace their surrogate in the future.

Rules governing payments to surrogates would also be made clearer. 

‘For profit’ commercial surrogacy would remain prohibited under the reforms. 

Summarising the report’s proposals, Black said that the “welfare of the child is paramount in all of our reforms”.

“We hope that the government will endorse these recommendations for law reform, to ensure that surrogacy law properly meets the needs of surrogate-born children, surrogates and intended parents,” she added. 

Now the report has been published, it is up to the government to decide whether to move forward with the recommendations and update current legislation.