by Nilah Ulhaq, Trainee Solicitor

The Law Commission of England and Wales and the Scottish Law Commission have recently published a joint consultation paper, Building Families through Surrogacy: a new law. The commissions label the current UK surrogacy laws as outdated and advocate that they should be updated to offer better support to the child, surrogates and intended parents.

The commissions’ proposals

The consultation paper briefly summarises the current laws of surrogacy and highlights issues with the current system. It proceeds to outline provisional proposals, including:

  • the creation of a new pathway to legal parenthood in surrogacy, which will allow intended parents to be legal parents from birth;
  • a regulator for surrogacy and the creation of regulated surrogacy organisations;
  • removal of the requirement of a genetic link between the intended parents and the child, where medically necessary;
  • creation of a register to allow those born of surrogacy arrangements to access information about their origins; and
  • various reforms and guidance for international surrogacy arrangements.

Payments to a surrogate

Chapters 14 and 15 of the consultation paper explain the contentious debate centring on whether surrogates should receive payments from intended parents. As per s 2 of the Surrogacy Arrangements Act 1985, it is a criminal offence for a person to negotiate surrogacy arrangements on a commercial basis.

It should, however, be noted that intended parents and surrogates are excluded from the scope of the criminal offences detailed in the Act. Sections 54 and 54A of the Human Fertilisation and Embryology Act 2008 provide that in order for a court to make a parental order, it ‘must be satisfied that no money or other benefit (other than for expenses reasonably incurred)’ has been paid by the intended parents to the surrogate. ‘Expenses reasonably incurred’ is not defined in the 2008 Act and has resulted in numerous court battles and ongoing debate.

The paper does not make any proposals in relation to surrogacy payments but recognises that the current law should be reformed. The commissions seek to understand the public view on surrogacy payments, asking various questions throughout the paper in attempt to reach a consensus on this debate.

The commissions are currently seeking views on their provisional proposals and expect to publish a report and draft bill in 2021. The consultation closes on 27 September 2019. Further information can be found on the surrogacy project page.

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