The Law Commission of England and Wales and the Scottish Law Commission have prepared a Consultation Paper which outlines proposals which would reform the law of surrogacy as we know it. We are still in the very early stages of the reform process, but the changes proposed would simplify the process for surrogates and intended parents and put in place safeguards for all participants.
The Consultation Paper makes several proposals, but the key changes proposed can be summarised as follows;
Legal Parenthood and Parental Responsibility
Presently, where a child is born through a surrogacy arrangement, the surrogate [and her husband/civil partner] will be viewed as the child’s legal parent (and have parental responsibility for the child) until an application is made to the court for a Parental Order and a final order is made. The law therefore runs contrary to the very intention behind a surrogacy arrangement wherein the intended parents become the parents of the child not the surrogate who may not wish to continue any relationship with the child at all, legal or otherwise.
The new proposals would simplify matters by creating a new surrogacy pathway whereby, subject to certain criteria being fulfilled, the intended parents would be considered as the legal parents of the child from birth and would also have parental responsibility. There would then be a period of time following the child’s birth in which the surrogate could raise an objection to the child’s intended parents remaining as the child’s legal parents. If the criteria were not met or an objection was raised by the surrogate, then the intended parents would resolve matters by applying to the court for a Parental Order in the existing way.
In the proposed Surrogacy Pathway there would be no need for a Cafcass Parental Order Reporter to assess the family or produce a report. Such a report is presently directed by the court during Parental Order proceedings and is conducted after the child is born and is living with the intended parents.
Under the new pathway, safeguards would instead be put in place prior to conception with the intended parents being screened by the body overseeing the surrogacy (for example, a not for profit charity) and their satisfying an eligibility criteria which requires;
- Medical testing of all participants and gametes to ensure the health of the surrogate and of any child conceived.
- Implications counselling being undertaken by the surrogate, her husband/civil partner and the intended parents to ensure that all participants understand what is being consented to.
- Independent legal advice being obtained by the surrogate and intended parents before they enter into a surrogacy agreement in order to outline the implications of the surrogacy agreement and potentially provide advice as its terms.
- Enhanced criminal records certificates to being obtained by the surrogate, her husband/civil partner and the intended parents which would be reviewed by the body overseeing the arrangement. An individual would not be entitled to enter into a surrogacy arrangement if they had been convicted of, or received a police caution for, specific criminal offences.
The usual checks would then be undertaken post-birth by midwives and health visitors.
At present the law requires the child born of a surrogacy arrangement to have a genetic link to one of the intended parents if a Parental Order is to be granted. It is proposed that this requirement is removed for the purposes of the new pathway but only in cases of medical necessity. Where a Parental Order was sought the requirement for there to be a genetic link would remain.
As the law presently stands, in order to grant a Parental Order, the court must be satisfied that no money or other benefit, except for expenses reasonably incurred, are paid by the intended parents to the surrogate. The court does however have the discretion to authorise payments which are beyond reasonably incurred expenses and can do so retrospectively. As payments are made prior to the child’s birth but are assessed at the time a Parental Order is being applied for, the child’s welfare is the paramount consideration and it is likely to the be in the child’s best interests for the Parental Order to be granted regardless of whether monies paid are `expenses reasonably incurred`.
The Consultation Paper identifies that the law in respect of payments to surrogates is a very blurred and there is no clear guidance as to what payments should be made to a surrogate and the extent to which payments should be restricted. The Consultation Paper makes several proposals for how to give clarity in respect of payments but there is not a single firm proposal being advocated at this stage.
The new proposals suggest that there should be a National Register of Surrogacy Arrangements which would keep a record of the various parties involved in the surrogacy arrangement. This would create openness for the child should they wish to learn more about their genetic and gestational makeup.
International Surrogacy Arrangements
At present, where an international surrogacy arrangement is entered into, regardless of the legal status of the parents in that country, on their return to England, they will not be recognised as the child’s parents and therefore would need to apply for a Parental Order which would grant them legal rights over the child and extinguish the rights of the surrogate and her husband. This situation would not change under the new proposals.
If implemented the new parental order pathway would make surrogacy in England far more accessible to those who need it. It would offer support and guidance prior to the surrogacy arrangement being entered into and would ensure that all parties understand and accept the implications of entering into the surrogacy agreement. It also ensures that safeguards are put in place prior to the surrogacy arrangement being entered into. Most importantly the new pathway ensures that the parties intentions become a reality from the time the child is born as opposed to at some later time when a Parental order is granted.