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/ 01 Mar 2023

UK Surrogacy Laws 2023: are they going to change for the better?

February was LGBTQ+ History month and in anticipation of our firm’s upcoming training with LGBT+ Mummies, it seems appropriate to have a think about the long-awaited Law Commission’s final proposals for reform of the law relating to surrogacy in the UK. Family law Associate Hazel Kent provides an overview on the current law and proposed changes below.

Hazel Kent

Senior Associate

Family & Divorce

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Surrogacy is an arrangement in which a woman (the surrogate) agrees to carry out a pregnancy to term on behalf of another person or couple. The Law Commission are due to publish their final report alongside the draft bill in spring 2023.

In the UK, surrogacy is governed by the Surrogacy Arrangements Act 1985 (nearly 30 years old) and certain provisions of the Human Fertilisation and Embryology Act 2008. Many say much of the law is outdated and inadequate as the courts, the surrogate, the intended parents and most importantly the child have encountered significant problems with the law. For example, intended parents have to wait for the child to be born and then apply to the court to become the child’s parents. The process can take several months to be finalised and in the meantime, the intended parents’ ability to take decisions about their child is hindered.

You may have seen in the news over Christmas particular low-cost surrogacy agencies being picked up by journalists for their unethical and unlawful contracts meaning that commissioning parents and surrogates could be left with no legal recourse should something go wrong in the process. The Law Commission have acknowledged there is insufficient regulation, making it difficult to monitor the surrogacy process to make sure that standards are kept high.

The Law Commission have also recognised the lack of clarity surrounding surrogacy payments, otherwise known as ‘reasonable expenses’ in the UK and due to the lack of clear guidance, the courts have been left with the task of interpreting the law ‘in the best interests of the child’ to ensure that the right outcome is reached for the family.

It is essential that surrogacy laws work for all parties involved in the process and that legal advice is taken from early on to avoid any pitfalls. Following the Law Commission’s five-year surrogacy project they have made the following key provisional proposals to better support those involved:

  • Creating a new surrogacy pathway that will allow, in many cases, the intended parents to be the legal parents of the child from the moment of birth.
  • Introducing specific regulation for surrogacy arrangements and safeguards such as counselling and independent legal advice, to reduce the risk of arrangements breaking down.
  • Allowing international surrogacy arrangements to be recognised here, on a country-by-country basis.

How can our Family Lawyers help you?

Whilst we wait for the draft bill to be finalised, given the complexities and potential risks surrounding the surrogacy process and the procedure for applying for a parental order, it is crucial to obtain legal advice at an early stage to avoid issues arising later on. We recognise how stressful the process can be and are on hand to provide high quality advice specific to your circumstances.

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