The Existing Issues with Surrogacy in UK along with the Proposed Solutions!

With the NHS claiming that one in seven couples in the UK struggle with conceiving naturally, surrogacy has grown in popularity as a means of establishing a family for many people in the West. Despite the practice's rising popularity, rules pertaining to surrogacy in UK make the procedure significantly slower and more cumbersome than in other Western nations like Canada or some US states like California.

The Law Commissions of England, Wales, and Scotland have previously acknowledged that there is almost no doubt that the UK law is outdated; nevertheless, it is less obvious how much the law should change, particularly with relation to commercial surrogacy in UK.

Existing Surrogacy laws in UK

Commercial surrogacy is prohibited by the Surrogacy Arrangements Act of 1985, despite the fact that it is legal in the UK. The only payments that can be offered to a surrogate are reimbursement for any reasonable expenditure that may occur as a direct result of her pregnancy (medical bills, compensation for time missed at work etc).

It's also against the law to promote surrogacy unless you're doing it for a nonprofit organization. If the surrogate mother in UK is married, her spouse will be listed as the second parent, unless they did not give their consent. At the time of the child's birth, the surrogate mother will be recognized as the child's mother, and it will be her name on the birth certificate.

A parental order can transfer parental responsibility to the designated parents. The Human Fertilization and Embryology Act of 1990 amended section 36 to make surrogacy agreements legally unenforceable, giving the surrogate the ability to fight to maintain her parental rights if she changes her mind after the baby is born. Even if their names are on the local birth certificate, parents of children born through surrogacy abroad are not recognized as the child's legal parents in the UK. In the UK, the intended parents must apply for a parental order before they may legally bring their child home because the surrogate is still regarded as the child's mother (unless consent is given by the surrogate).

The Issues with surrogacy in UK

The way the existing law handles the transfer of parenting is the first significant problem. In cases involving children born through assisted reproduction, the Human Fertilization and Embryology Act of 2008, Section 33(1) states that "The woman who is carrying or has carried a child as a result of the placing in her of an embryo or of sperm and eggs, and no other woman, is to be treated as the mother of the child." As a result, the intended parents cannot be immediately regarded as the surrogate child's parents.

In the UK, parental orders cannot be filed until six weeks after the child is born because they require the surrogate's agreement, which is invalid if granted earlier than six weeks after birth. It can be challenging if the intended parents have split up before or during the parental order proceedings because the child must be living with the intended parents at the time of the application and making of the order.

These laws make the process very uncertain and uneasy for both the intended parents, who may have to wait for months and jump through various legal hoops before finally being recognized as their children's legal parents, and for the surrogate, who, should the intended parents fail to obtain a parental order within six months of the baby's birth, could end up being saddled with legal responsibility. Surrogacy agreements are not legally enforceable, which makes the process very uncertain and uneasy for both the intended parents.

Reforming the law: the present recommendations of the Law Commission

In June 2019, the Law Commission released its surrogacy consultation document. It recognizes the different problems with the UK surrogacy legislation and suggests a number of feasible reform strategies based on a few overarching concepts. The Law Commission has proposed a new pathway that would allow intended parents to become the child's legal parents at birth (if they meet the eligibility requirements: "Law Commission, Building Families Through Surrogacy: A New Law" (Law Com 244, 2019) ch 12), while also giving the surrogate mother in UK a brief window of time during which she may decide to change her mind (Ibid, ch 8). It would be necessary for the surrogacy agreement to be overseen and countersigned by a government-licensed surrogacy organization or clinic in order to verify that the new pathway is appropriately regulated.

Additionally, the Law Commission has suggested strategies to make overseas surrogacy via surrogacy clinic in UK a more practical choice (Ibid, ch 16). While they have proposed changes to the rule that always treats the woman who gives birth as the mother could allow the intended parents to be recognized as the child's legal parents, they have rightfully deemed large-scale nationality law reform for the sole purpose of facilitating surrogacy unnecessary. This would make the process of bringing home and awarding citizenship to a child born through surrogacy abroad no more difficult than EARLIER.