In a conversation the other day someone told me they thought surrogacy was currently illegal in the UK, and you had no choice but to do it abroad. Actually, the laws that regulated UK surrogacy came in around 40 years ago, but in a very different social landscape, and we have outgrown them considerably. Currently, around 50% of all UK babies born to surrogacy were born through foreign arrangements, and the perception certainly seems to be that the UK is not a surrogacy-friendly place.
Changing this, and making it easier, more secure, and crucially, a regulated and supported process in the UK has been the focus of a Law Commission report, whose recommendations have now been published.
The key features of change are:
- The intended parents will be the legal parents from the point of birth, unless consent is withdrawn prior
- Front loaded support to the surrogate and the intended parents to ensure a smoother and more collaborative process
- Reducing stress and worry, making the process more reliable so that more people will feel confident doing it within the UK, not having to look abroad.
- Regulation and registration making everyone’s rights and access to information clearer, including the nomination of Regulated Surrogacy Organisations to support the parties from the outset.
Changes to the law are overdue and the Law Commission recommendations would overhaul some of outdated rules, for surrogate births taking place in the UK, at least. The new pathway is not recommended for UK intended parents using a surrogate abroad. However, the report estimates that the changes will allow more people to use a UK surrogate and the number of foreign surrogacy arrangements will fall from 50% to 25% – 30% of the total.
The recommendations do bring good news, and allow more certainty on both sides. The key feature of the new pathway is to ‘front-load’ the process, so that there are safeguards and assessment at the outset which then allow the intended parents and surrogate, under a regulated agreement and process to confidently embark on the process.
With the surrogate’s ongoing consent, the intended parents will be the legal parents at birth. This removes the need to apply for a parental order following the birth (estimated at an average cost of £10,000 for represented parents), not to mention the stress, admin and worry on top of getting through parenting a new born baby.
The pathway still does not constitute an enforceable agreement, except in terms of payments, and the surrogate retains her right to withdraw consent up to six weeks after the baby’s birth, meaning that the case would be put before a Judge to assess what was best for the child.
The UK has adhered to its ‘altruistic’ rather than commercial approach, meaning that no party (parents, surrogate, agency) can benefit financially from the surrogacy. An intended parent can cover the costs for the surrogate’s expenses related to the surrogacy, including time off work, extra food, medical costs, maternity clothes, but there can be no form of payment for the surrogacy itself.
The limits on payments being made to surrogates were always in place to prevent commercial arrangements and exploitation of vulnerable parties. On the new pathway, and agreed schedule of reasonable expenses with upper limits for each will be agreed at the outset. If a payment is not made to the surrogate she can enforce the agreement, if the reasonable limits are exceeded, the parents must declare it or face criminal penalties.
This will not assist parties who use surrogates abroad and struggle to get visas and travel documents in time to return to the UK and start the applications for parental orders.
For those intended parents, the report recommends changes to operational practice within the Home Office to speed up passport and visa applications on a fast-track process, so parents can bring their children home sooner. This would reduce separation time between a child and its parents. Unfortunately, I think we can be sceptical about how achievable a significant change is given the limits of the already very stretched Home Office resources.
For further information on any matters raised in this article or any related queries, please contact us on 0345 646 0406 or fill in our online enquiry form and a member of our team will be in touch.