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Understanding surrogacy and the need for reform
Surrogacy is a process in which a woman carries and gives birth to a child on behalf of another person or couple. While it provides a vital route to parenthood for many, the current legal framework governing surrogacy in the UK is outdated and often fails to serve the best interests of all parties involved: the intended parents, the surrogate, and, most importantly, the child. In response to these challenges, the Law Commission has proposed reforms aimed at creating a clearer, fairer, and more supportive legal structure for surrogacy arrangements.
The current law
Surrogacy arrangements are legal in England and Wales; however, it is important to note that no one, including third parties, can profit from them. Surrogates are only entitled to claim ‘reasonable expenses’. The result is informal agreements which lack legal enforceability, leaving both parties with little to no legal protection. This often leads individuals to seek surrogacy arrangements abroad, which comes with its own set of challenges and complexities and moral considerations.
At present, the legal system places significant burdens on intended parents, surrogates, and legal professionals alike.
Under existing laws in England and Wales:
- The surrogate is the legal mother at birth and is named on the birth certificate.
- If the surrogate has a spouse or civil partner, they are automatically considered the second legal parent.
- The intended parents must apply for a parental order after birth to gain legal recognition as the child’s parents, a process that can take months.
- Intended parents must meet several conditions, including having a genetic connection to the child, ensuring the child lives with them, and obtaining the surrogate’s formal consent.
- Surrogacy arrangements are legal; however, no individual or third party is allowed to profit from them. Surrogates can claim only ‘reasonable expenses.’ Consequently, these agreements remain informal and lack legal enforceability, leaving both parties with minimal protection. As a result, many individuals seek surrogacy abroad, which presents its own set of challenges.
Key issues with the current law
There are a number of issues with the current framework:
- Delayed Legal Recognition – The child has no legal relationship with the intended parents until a parental order is granted, despite already living with and being cared for by them. If the child is born through an international surrogacy arrangement, then there can be issues with immigration and result in the baby being in a state of ‘legal limbo’ for many months after birth. There can also be delays with the granting of the parental order where, for example, the spouse or civil partner of the surrogate cannot be traced or refuses to cooperate.
- Surrogate Vulnerability – If the intended parents change their minds, the surrogate remains the legal parent, meaning she is left with the legal responsibility for a child she never intended to raise. The converse is also true; if the surrogate changes her mind and decides she wants to keep the baby then there is limited legal redress for the intended parents, and the parties will face potentially long, expensive and acrimonious court proceedings to determine what arrangements will be best for the child. Any expenses already paid to the surrogate would also not be recoverable under the surrogacy agreement.
- Lack of Early Oversight – There is no formal scrutiny of the surrogacy arrangement before birth by lawyers, meaning potential legal and ethical issues are only addressed after the child is born. It is often too late to address any issues by this point.
The proposed “new pathway” to Surrogacy: key features
The Law Commission has recommended a “new pathway” that aims to provide legal certainty and protection for all parties from the outset.
- Immediate Legal Recognition: Intended parents would be recognised as the child’s legal parents from birth, removing the need for a parental order and ensuring greater stability for the child and family.
- Protection for Surrogates: While the intended parents gain legal status at birth, the surrogate retains full autonomy over her pregnancy and childbirth. She has the right to withdraw consent at any point during the pregnancy or up to six weeks after birth, at which point legal parenthood would be determined through the court system.
- Pre-Conception Screening & Agreement: The new framework introduces mandatory legal scrutiny before conception, ensuring that all parties are fully informed and protected. This includes background checks, psychological assessments, and legal advice to ensure informed decision-making.
- Legal Professional Support: The reforms propose allowing lawyers to advise, negotiate, and draft surrogacy agreements for a fee, bringing much-needed clarity and legal protection for all parties involved.
The future of surrogacy reform under the Labour government
While these reforms represent a significant improvement, their implementation is unlikely to be a priority for the new Labour government. Surrogacy reform will likely compete with other pressing issues on the government’s agenda.
Michelmores remains committed to supporting intended parents and surrogates in navigating the existing legal landscape while advocating for these essential reforms.
How Michelmores can help
If you are considering surrogacy, our team is here to assist you.
- Surrogacy Advisory Services – We provide advice to all parties in relation to potential surrogacy arrangements, and we represent intended parents and surrogates in formal applications for parental orders. We are transparent about costs from the outset and in some circumstances we can offer a fixed-fee service.
- Surrogacy & Wills – Surrogacy arrangements have significant implications for estate planning. Read our detailed article on how to protect your family’s future through proper legal planning here. We can offer a fixed-fee package for prospective surrogates to include advice on the surrogacy process and the drafting of a Will.
For more information, please contact Laura Bond or Gemma Shepherd at Michelmores to discuss how we can help you and your family.
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