Changing UK Surrogacy Laws – Our Campaign

Responding to the Law Commissions’ consultation

REFORM AREA 1: Creation of a new pathway that allows intended parents to be legal parents from birth

Questions 1 to 8 in the Short Form Survey relate to the bundle of proposals discussed below 

There are two parts to our guidance on this bundle of reforms:

  1. A summary of the Law Commissions’ provisional proposals 
  2. Surrogacy UK’s emerging views on the provisional proposals (please note these are provisional views that will evolve as we consult with our members and the surrogacy community)
SUMMARY OF THE LAW COMMISSIONS’ PROVISIONAL PROPOSALS 
OVERVIEW: The aim of the new pathway is to create a route through which the intended parents can become the legal parents of the child born through surrogacy from birth
IPS AUTOMATICALLY BECOME THE LEGAL PARENTS FROM BIRTH. 
  • The proposal is for a new pathway, based on a rigorous pre-birth administrative process (incorporating key safeguards), which, if followed, automatically gives IPs legal parenthood at birth.
  • Under the new pathway IPs will not need to apply for a Parental Order (providing the surrogate does not object to them becoming legal parents within a defined time period) and will be able to register the birth (without the surrogate being present)
  • It is important to note that under the new pathway IPs cannot change their minds about being the legal parents of the child at birth
  • IPs will be able to register the birth once the period for the surrogate to object has expired (see below)
  • Although the surrogate is not a legal parent at birth, under the proposals she would share parental responsibility with the IPs until  her right to object expires.
THE SURROGATE HAS A DEFINED TIME PERIOD WHERE SHE HAS THE RIGHT TO OBJECT TO THE IPS BECOMING LEGAL PARENTS. IN THIS CASE SHE WOULD BECOME THE LEGAL PARENT AND THE IPS WOULD NEED TO APPLY FOR A PARENTAL ORDER (PO)
  • In order to invoke her right to object, the surrogate must make her objection in writing to both the IPs and to any body responsible for the regulation of surrogacy arrangements
  • The proposals account for a situation in which the surrogate lacks the capacity to consent during the period in which she may exercise her right to object (e.g. if she is unconscious). When IPs register the birth, they are required to make a statement that they have no reason to believe that the surrogate has lacked capacity at any time during this period
  • If the surrogate invokes her right to object then the arrangement exits the new pathway and enters the Parental Order (PO) route, whereby the court will decide the permanent legal status of all parties
  • When the surrogate activates her right to object, she automatically becomes the legal parent of the child. The IPs automatically lose their status as legal parents and must apply for a PO. A court will decide the permanent legal status of all parties as part of the PO process
  • When the surrogate activates her right to object, she retains parental responsibility for the child during the period in which the PO process is underway. The IPs only retain parental responsibility (along with the surrogate) during this period if they are caring for the child. A court will decide the permanent legal status of all parties as part of the PO process
CHANGES TO THE CURRENT PARENTAL ORDER ROUTE:
  • If IPs do not meet the requirements of the new pathway, they will follow the current PO route. Included in the consultation paper are proposals to improve the post-birth PO process. These include:

    • The court should be able to dispense with the surrogate’s consent if it is in the best interests of the child for the making of a PO. This means no one party would be able to veto the court’s decision. For this to happen, the case must fall into at least one of the following categories:
    • The surrogate lacks capacity or cannot be found (these categories are already provided for in the existing law);
    • The child is living with or being cared for by the IPs with the surrogate’s consent; or
    • The court has decided that the child should live with the intended parents.
  • Under the proposed revisions to the PO route, IPs would automatically acquire parental responsibility at birth if the child is living with them and they intend to apply for a PO
THE SURROGATE’S CIVIL PARTNER OR SPOUSE WILL NOT BE A LEGAL PARENT OF THE CHILD
  • Under the new pathway, it is proposed that the surrogate’s partner/spouse does not become a legal parent to the child. In the case of the parental order pathway they ask a question about whether this should be the case.
  • Under the new pathway the surrogate’s spouse/partner does not need to be a party to the surrogacy agreement but will need to comply with certain checks and safeguards (for example medical checks, an enhanced criminal records check and implications counselling) that are mandated within the process
WHAT ARE SURROGACY UK’S EMERGING VIEWS ON THE PROVISIONAL PROPOSALS? 

PLEASE NOTE THESE ARE PROVISIONAL VIEWS THAT WILL EVOLVE AS WE CONSULT WITH OUR MEMBERS AND THE SURROGACY COMMUNITY

LEGAL PARENTHOOD AND PARENTAL RESPONSIBILITY: Surrogacy UK has campaigned passionately for intended parents to be able to become legal parents at birth. 

Whilst we therefore whole heartedly support this reform, there are some practical details in the proposals that we think need to change. It should be noted that these are our initial thoughts and they may change over the course of the consultation period. We are conducting our own research with our members and the community before we finalise our position and submission to the consultation paper:

    1. Under the new pathway we feel that it’s not appropriate for the surrogate to have a period of time where she has shared parental responsibility for the child. This does not tally with the feedback we’ve had from surrogates that says that they do not want to be treated as a parent at any point. They want the IPs to be recognised and treated as parents.  
    2. In the new pathway, the consultation paper proposes that if the surrogate objects to the IPs becoming legal parents (within a defined time period) she automatically becomes the legal parent and the IPs lose this legal status. We do not believe that this is the right approach and we provisionally suggest that in this situation the IPs should remain legal parents until the case goes to court, where the permanent status and rights of all parties will be decided. 
    3. We are interested in hearing your views on when you think the time period for the surrogate to object to the IPs becoming legal parents should end: should this be at birth?; or should this be for a fixed period after the birth as the consultation paper suggests?
    4. We are concerned that under the new proposals the IPs only have a small time frame (one week) in which they would ideally register the birth 
DISPUTED PARENTAL ORDER APPLICATIONS:
  • We support proposals that would allow, in certain circumstances, a court to dispense with the surrogate’s consent to the making of a parental order if it is deemed in the child’s best interests to do so.  We ask the Law Commission to ensure that the court has the ability to apply this change retrospectively on a case-by-case basis where it is overwhelmingly in the child’s best interests to do so. 
SURROGATE’S SPOUSE/PARTNER: We support proposals that prevent the surrogate’s civil partner or spouse being a legal parent in either the new pathway or the PO route. 

Click here to download the Short Form Survey and respond to the Law Commission’s provisional proposals.

Back to the intro page or click on the reform areas below to learn more

Reform Area 1 Creation of a new pathway that allows intended parents to be legal parents from birth
Reform Area 2 Specific requirements and safeguards that are mandated for entry into the New Pathway
Reform Area 3 A regulator for surrogacy and regulated surrogacy organisations
Reform Area 4 Double donation (no genetic link to IPs required) could be permitted under the New Pathway in domestic surrogacy
Reform Area 5 Creation of a national surrogacy register so those born through surrogacy can access information about their origins
Reform Area 6 The Law Commission asks an open question about what kinds of payments should be allowed in surrogacy arrangements
Reform Area 7 For international surrogacy arrangements the Law Commission proposes reform and guidance to make it easier to bring a surrogate child back to the UK