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The Law Commission of England and Wales and the Scottish Law Commission have published reforms for Government to improve outdated surrogacy laws.
The Law Commissions say that despite the increased demand, surrogacy laws have failed to keep up with the times. Dating in part from the 1990s or even 1980s, existing surrogacy laws often fall short in providing the right level of protection for all parties involved.
The Law Commissions’ report and draft legislation, the result of an extensive review, provides a new regulatory regime that offers more clarity, safeguarding and support – for the child, surrogate and parents who will raise the child (“the intended parents”). Under the reforms, a new system governing surrogacy agreements, “the new pathway”, would come into force – the first time that the law has introduced a route for surrogacy where scrutiny of arrangements starts pre-conception.
Overseen by non-profit organisations operating under a regulatory body, the Commissions’ new pathway would ensure rigorous pre-conception screening and safeguarding. If the right conditions are met, it would allow intended parents to become the legal parents of the child from birth, subject to the surrogate’s right to withdraw her consent.
The Law Commissions consider that the new system would improve the current process, which involves a sometimes complex and lengthy journey through the courts after the child has been born, resulting in some couples waiting up to a year after birth before they become legal parents of the child.
The report says: "Our recommendations will ensure that surrogacy continues to operate on an altruistic, rather than a commercial basis. They seek to protect the best interests of the child by providing greater certainty to surrogates and to intended parents as regards legal parental status (a term we use to describe legal parenthood). In line with the shared intentions of the surrogate and the intended parents, our recommendations enable the intended parents to be recognised as the legal parents from birth, as long as that remains the wish of the surrogate, while protecting the surrogate’s autonomy throughout pregnancy and childbirth. Our recommendations provide important protections against the exploitation of women who become surrogates, by putting in place safeguards and checks before conception takes place. Finally, in view of the particular concerns associated with international surrogacy, our recommendations incentivise intended parents in England, Wales and Scotland who are considering surrogacy to enter into an arrangement here, rather than going abroad."
You can read the report here.
