Surrogacy consultation published

11th June 2019 Family Law

It’s finally here. The Law Commission’s long-awaited consultation document on the reform of UK surrogacy law is out. The plan is for the consultation to remain open until September 2019. Responses will be analysed and the Law Commission (the body responsible for researching areas for potential reform of the law and proposing new legislation) plans to produce a report with recommended new legislation in 2021. It will then be for the government of the day to decide whether to promote the new legislation and devote parliamentary time to it, for MPs and peers to scrutinise and ultimately decide whether or not to bring it into law.

Long story short: we are a long way off getting the new law on surrogacy that intended parents, surrogates and surrogate-born children so badly need. However, the proposals contained in the consultation are ambitious and represent a genuine attempt to bring surrogacy law up to date.

  • The key areas earmarked for reform are:The creation of a new, non-court surrogacy pathway that will allow intended parents to be recognised as the legal parents of their surrogate-born child from birth. There would be strong safeguards and opportunities to step out of the pathway and back into the current court-led process where circumstances demand it

  • A regulatory framework for surrogacy arrangements to include counselling and independent legal advice

  • Recognition of international surrogacy arrangements on a country by country basis. As things stand, the parentage of a child born of a surrogate abroad is determined by UK law, regardless of what orders have been made in the country of birth

  • The immigration and nationality implications of an international surrogacy arrangement. The current arrangements can leave children and intended parents stuck abroad for many months while the child’s status is determined and, at worst, lead to children being born stateless and/or unable to return to the UK

  • A fresh look at what payments made to surrogates should be allowed. At present so-called “commercial surrogacy„ when a surrogacy arrangement entered into for gain beyond reasonable expenses is illegal in the UK, in contrast to other jurisdictions, such as certain states in the US. This section of the consultation is an open request for evidence from all those with a stake in the process and is likely to be among the more controversial elements of any reform

It will be a slow process to change the law, and rightly so. Surrogacy interacts with a whole series of complex issues: identity, genetics, reproductive ethics, social norms of parenting and family life, nationality and citizenship, the protection of children and vulnerable individuals and the prevention of abuse, including child-trafficking. As an individual working with intended parents and surrogates day in day out, I am delighted to see a root and branch reform of the current law being undertaken. Let’s hope the project delivers the new law we need.

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Jo-Anna Jellings is an Associate Solicitor located in Manchester Londonin our Family department

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