Surrogacy law reform. Where to now?

6th August 2018 Family Law

We are part way through the first ever National Surrogacy Week, organised by Surrogacy UK and Best Beginnings to celebrate and raise awareness of surrogacy and recognise the work of UK professionals working in the field. Here at JMW we advise intended parents from all walks of life on the legalities of surrogacy and their options for building their family both here and overseas.

Surrogacy is a fast-moving area in terms of the social, ethical and legal issues it raises. We are at something of a crossroads in the law. The law as it stands creates many issues but one very pressing concern is the fact that a single person is (currently) not permitted to apply for a parental order, making them the child's legal parent after birth as part of a surrogacy arrangement. In 2016, England's most senior family judge, the President of the Family Division, heard a case brought by a single father who was unable to obtain a parental order in relation to his biological child. The President made a 'declaration of incompatibility', a formal notification to parliament that one of its laws breaches an individual or group of individuals' human rights.

Right now, the UK parliament is in the latter stages of considering a change to the law to enable single people to obtain a parental order in relation to biological children born through surrogacy, regardless of their relationship status. With any luck this should become law early in 2019. We really welcome this. Only last year, our JMW surrogacy team acted in the reported case M v F & SM (Human Fertilisation and Embryology Act 2008) [2017] EWHC 2176 (Fam) where this weakness in the law raised its head. The court was forced to make a wardship order to provide a secure legal structure for the child and rather than a parental order because the intended parents were no longer a couple when the child was born.

This reform is important and long-overdue but behind the scenes there are even bigger changes afoot. Notwithstanding some amendments and updates, the fundamentals of UK surrogacy law are over 30 years old and relate to a world in which surrogacy was uncommon and deeply controversial. Surrogacy continues to grow significantly in popularity and it seems as though the subject is never out of the headlines for long. The Law Commission has chosen a wholesale review of our UK surrogacy law as one of the project areas for its flagship law reform programme. As a first step, a consultation is expected in spring 2019.

So, what next for surrogacy in this country? Law reform will not happen imminently but the process is at least underway. We expect the reform project to look at the mechanism whereby the child's intended parents become legal parents after the birth and whether it can be improved, the issue of commercial surrogacy (illegal in the UK where surrogates can only receive 'reasonable expenses') and the regulation of surrogacy generally.

From the birth of the first IVF baby to the possibility of 'three-person embryos' to provide hope in cases of mitochondrial disease, Britain has long been at the cutting edge of assisted reproductive techniques. In the field of surrogacy, we look to our law reformers to lead the way in providing a modern, forward-looking legal framework for the coming years.

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

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