Changes to UK’s obsolete surrogacy laws are crucial for the future of parenting – Fiona Sharp

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Fiona Sharp is a Senior Partner, Brodies LLP

With reports suggesting that the number of surrogate motherhoods in the UK has tripled in the past three years, this is undoubtedly becoming a more common path to parenthood.

While there is still room for improvement, in terms of awareness and understanding of the processes involved, the public perception of what surrogacy involves may differ somewhat from reality.

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There are two main forms of surrogacy; the traditional option where the surrogate mother uses her own egg and is genetically linked to the child, and gestational surrogacy, where the surrogate mother’s egg is not used, and IVF is used to conceive the child. ‘child. In the UK, surrogacy is available for various family units, with recent trends indicating that it is increasingly used by same-sex couples. Compare that with countries like Israel where surrogacy is only available to prospective parents who are heterosexual couples, or Ukraine where surrogacy is exclusive to heterosexual married couples.

In terms of what UK law says, surrogacy is legal provided its basis is altruistic; surrogate mothers cannot receive payment or other benefits from intended parents. However, they can deduct “reasonable pregnancy-related expenses” incurred as a result of the pregnancy and childbirth.

Often times, the process will be outlined in a surrogacy agreement, which sets out the terms of the agreement (many clinics require an agreement to be in place before offering treatment). However, these agreements are not binding in the UK and lawyers are prohibited from drafting one for commercial purposes. The surrogacy process can be complicated and, as The Surrogates shows, a surrogate mother can refuse to abandon the child at birth, and if this happens, the intended parents cannot take any action to enforce this. which was previously agreed. The surrogate mother is not the only vulnerable part, the future parents can be too.

Many people who are considering surrogacy do not realize that the intended parent (s) does not automatically become the legal parent (s) of the child after birth. UK law provides that the legal parents of a child are the surrogate mother and her spouse / civil partner (unless her consent has not been given to the process). The intended parent (s) must apply to the court for a parental order, allowing the transfer of parentage.

The process can be long and in the meantime the ability of future parents to make decisions about the child in their care is compromised. It is important to note that the consent of the surrogate mother (and her spouse / civil partner if applicable) is essential for the parenting order to be granted. Currently, expectant parents who have opted for surrogacy using sperm and eggs and have no genetic link to the child, are not eligible to apply for a parenting order and may need to consider other options, such as adoption.

Potential challenges like these are among widespread concerns that UK surrogacy legislation is outdated and should be changed to reflect current attitudes towards surrogacy. Regulation of the process is also considered insufficient, making it difficult to monitor and maintain high standards. Surrogacy laws are currently under review by the Law Commission of England and Wales and the Scottish Law Commission, and a bill is expected to be available in early 2022. The main proposals being considered are:

Create a new way of surrogacy to allow, in many cases, future parents to become the legal parents of the child from birth; Introduce specific regulations for surrogacy arrangements and guarantees such as independent legal advice and advice; and Allow international surrogacy agreements to be recognized here country by country.

It is hoped that the proposed new path will better protect the well-being of the child and that there will be more emphasis on the pre-conception process, allowing for a more in-depth review of surrogacy arrangements.

It is likely that the frequency of surrogacy will continue to increase; Exam results in Scotland, England and Wales will play an important role in paving the way for changes to UK surrogacy laws, and subsequently the future path to parenthood for many.


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