Changing UK Surrogacy Laws – Our Campaign

Responding to the Law Commissions’ consultation

REFORM AREA 2: Specific requirements and safeguards that are mandated for entry into the New Pathway

Questions 9 to 16 in the Short Form Survey related 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 COMMISSION’S PROVISIONAL PROPOSALS 
OVERVIEW: The process leading to the IPs acquiring legal parenthood will begin before the child is conceived. The process will include rigorous safeguards.
PROPOSED SAFEGUARDS IN THE NEW PATHWAY:
  • A rigorous pre-conception process, which incorporates safeguards, will need to be followed. It includes the following mandated activities. IPs will be required to evidence compliance with these for each arrangement under the new pathway:
  • Medical checks for all (including surrogate’s spouse/partner)
  • Independent legal advice: the consultation paper proposes that both parties must take independent legal advice (on the legal implications of the agreement) in order to access the new pathway. In addition, the consultation paper proposes that lawyers should be able (although not required) to advise on the drafting of the agreement (thereby lifting the ban on this activity under the current legislation). Lawyers would therefore be able to charge for drafting or advising on agreements on a for-profit basis 
  • Enhanced DBS checks with a prescribed list of offences (related to risk/harm to the child) that bars parties from entering into a surrogacy arrangement in the new pathway 
  • Implications counselling for all (including surrogate’s spouse/partner)
  • A written agreement overseen by a regulated surrogacy organisation, clinic or lawyer. As part of the surrogacy agreement it is proposed that IPs declare that it is their intention that the child will live with them from birth. Please note it is proposed that the written agreement would remain unenforceable, except in relation to the financial terms of the agreement. It is proposed that the surrogate should be able to enforce the terms of the agreement relating to payment. This would be dealt with completely separately from any disputes over legal parenthood.
  • Assessment of the welfare of the child to be born would be made in the same way as for other assisted reproductive technologies, such as IVF, (see Chapter 8 of the HFEA current code of practice).
WHO WOULD BE ELIGIBLE FOR THE NEW PATHWAY?
  • The new pathway would be available to those: pursuing domestic surrogacy arrangements; who are domiciled or habitually resident in the UK, Channel Islands or Isle of Man; and to both traditional and gestational surrogacy
  • The consultation paper contains a range of questions over who should be eligible for surrogacy. Amongst the most significant it asks:
    • Should a requirement be added to ensure surrogacy is being used out of medical necessity? Please note that the consultation paper suggests using a wide definition of medical necessity, which would include psychological and mental health reasons and consider the potential harm for any child born. This definition would not exclude (gay or single) men from being able to access surrogacy
    • Should there be a requirement that a surrogate has previously given birth in order to be part of the new pathway? 
    • The consultation paper also asks whether independent arrangements could be brought within the new pathway and asks those with experience of independent arrangements to share their experiences, especially in relation to the safeguards undertaken
REMOVING THE BAN ON ADVERTISING
  • The consultation paper also proposes removing the ban on advertising as long as the content of what is advertised is lawful
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

FORMALISED SAFEGUARDS AND CHECKS: We are broadly supportive of the checks and safeguards that are formalised in the new pathway. We do not foresee a huge impact on surrogates or IPs that would pursue a surrogacy journey through a surrogacy organisation as the vast majority of these pre-requisites are already in place as part of “best practice” within the community. However, we question whether all of these checks and safeguards need to be mandated, especially the requirement for independent legal advice. 

We also raise two concerns:

1) whether the increased costs, process and ‘interference’ of the new pathway would disincentivise people to use this pathway even with the benefit of at-birth legal parenthood. We are exploring how the Law Commissions/Regulator could encourage more people to use the new pathway rather than the Parental Order route under the new model;

2) we are cautious of creating disparity between IVF and other forms of assisted reproduction where many of these safeguards are not mandated in legislation.

We support the increased role of surrogacy agreements in the new pathway and would like to ensure that they are not reduced to a document that only checks understanding of the legal implications of surrogacy and eligibility to enter the new pathway. Surrogacy agreements should be the process by which all aspects of a surrogacy arrangement (including contact, diet, worst case scenarios etc) are discussed openly by the individuals and any areas of disagreement are identified. This requires a specific skill in facilitation/mediation coupled with a deep understanding of the full surrogacy experience of surrogacy teams.

We agree that a surrogate should be able to enforce the financial terms of a surrogacy agreement and would like to explore this more with our members.

CHILD FREE SURROGATES We strongly support the inclusion of child-free surrogates within the new pathway and encourage surrogates who do not have children themselves to write to the Law Commission with their experiences.
REMOVING THE BAN ON ADVERTISING: We recognise the arguments that support lifting a ban on advertising and we cautiously support this. We raise a concern that lifting the ban may increase the number of informal arrangements and ask the Law Commission to consider how it might prevent this risk being realised.  
MEDICAL NECESSITY FOR SURROGACY We would like to hear more from our members on whether “medical necessity” should be added as a requirement for IPs pursuing surrogacy. We are wary of introducing a mismatch between the rules for surrogacy and other forms of assisted reproductive technologies such as IVF

Click here to download the Short Form Survey and respond to the Law Commissions’ provisional proposals. Questions 9 to 16 refer to this bundle of reforms.

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