Why UK surrogacy laws need to change

There are definitely things we can implement and learn from other countries to make the process smoother, writes Karen Holden

Surrogacy laws are currently under review by the Law Commission of England and Wales (Getty/iStock)

My team and I have worked with surrogacy cases for more than a decade in both the UK and abroad. From surrogates asking for more money to separating parents during the process, trust me when I say we’ve seen it all.

Each country has varying rules and regulations when it comes to surrogacy, some more restrictive and some more inclusive. Although a lot has changed over the years to make the process more accessible, UK laws in relation to these arrangements still remain complicated with much room for improvement. At present they are governed by several historical acts of parliament, such as the Surrogacy Arrangements Act 1985, the Human Fertilisation and Embryology Act 2008 (HFEA 2008) and the Adoption and Children Act 2002 (ACA 2002).

Unlike some other countries, our current legislation affords such little protection and certainty to intended parents (IPs) and also the surrogate, which means many UK IPs prefer undertaking their surrogacy arrangements internationally. However, even upon their return, these IPs are still required to apply for a parental order and follow UK rules to secure parental responsibility for the child.

The principal concerns with domestic UK arrangements are that it presently is a higher risk country as it can’t provide the certainty that most people would like. Surrogacy agreements are not legally binding and a solicitor is not permitted to advise the parties on its terms. UK IPs must also apply for a parental order, regardless of where the surrogacy arrangement took place, meaning a court hearing and costs. Many also find this process stressful as they are having to justify their parentage.

Parental rights can only be transferred post-birth. The surrogate (and her spouse) can only sign the consent form six weeks after the birth, which concerns many parents in case minds are changed. Until the parental order has been granted the surrogate remains the legal mother for all legal purposes according to UK law, regardless of any contracts or birth certificates from overseas. UK IPs are also not automatically both given parental rights for medical decisions or shown on the baby’s birth certificate and able to apply for a UK passport. This means another layer of administration, uncertainty and legal work.

There are definitely things we can implement and learn from other countries to make the surrogacy process smoother in the UK. For instance, the US is often chosen due to its historically proven system that closely vets and screens the surrogates, which means ultimate protection. In some states the contracts are legally binding, helping reduce anxiety for IPs. Also, because you can have a commercial arrangement there is a larger pool of available surrogates. In contrast, UK surrogacy is permitted on an altruistic basis meaning you cannot pay more than reasonable expenses which can limit people's options.

For those born in Canada or the US (not all states), the IPs can be immediately recognised as legal parents on that birth certificate and can obtain a passport within a three-month period. This affords the peace of mind many IPs are looking for. Although, immigration advice and planning are still very much essential, ultimately parental rights are legally secure at this stage, whilst abroad. Making adjustments in line with successful surrogacy policies abroad would be a beneficial move for the UK.

Surrogacy laws are currently under review by the Law Commission of England and Wales, and it is expected that by the early part of 2022 we shall see further developments. If passed, some critical changes could include the creation a new surrogacy pathway that will allow, the IPs to be the legal parents of the child from the moment of birth. Also, introducing specific regulations for surrogacy arrangements and safeguards such as counselling and independent legal advice. This should reduce the risk of arrangements breaking down. Allowing international surrogacy arrangements to be recognised here, on a country-by-country basis will also make a difference.

Undoubtedly the commission has spent a great deal of time considering the jurisdictions that have streamlined the process, such as Canada and the state of California. There is optimism that in the future we may see some paralleled working patterns between lawyers specialising in this area of law.

I hope the introduction of the above proposed changes will pave the way for continued improvements in this area which would be a great win for all parties involved in the surrogacy process.

Karen Holden is CEO of A City Law Firm