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A new report, published by Surrogacy UK, claims to dispel many of the myths concerning international surrogacy and brings into focus the practice of surrogacy in the UK. Surrogacy laws were first introduced about 30 years ago but society and the medical options available to couples have changed over the years since then. Many parents, medics and legal professionals (uncluding us at CFLP!) have concluded that the current surrogacy legislation, once thought to be ground breaking, is no longer ‘fit for purpose’ and doesn’t meet the needs of the surrogate, the parents and, most importantly, the baby. This new report calls for reform of surrogacy law.

According to the report – Surrogacy in the UK: Myth busting and reform – fewer Britons seek surrogacy overseas than had been previously thought, thus dispelling the myth that international surrogacy has become commonplace for intended parents from the UK. The report also shows that there is widespread rejection of any move towards commercialisation of surrogacy. The overwhelming majority of surrogacy in the UK is undertaken by women on an altruistic basis with most UK surrogates receiving less than £15,000 for out-of-pocket expenses incurred, demonstrating that surrogacy is a relationship and not a transaction. The report finds that 69% of surrogates are opposed to being able to change their mind about giving a baby back to its intended parents with only 5% believe that a surrogate should be able to change her mind at any point.

Also highlighted by the report is the overwhelming support (75% of survey respondents) for legal reform in order to better represent how UK surrogacy works in practice. The report shows that both surrogates and intended parents want to remove the legal uncertainty over parenthood at the point of birth. At the moment, legal parenthood rests with the surrogate at birth. The intended parents must apply after birth for a parental order, which can take several months. In the meantime, they have no legal rights and the child is left in legal limbo with regard to the intended parents. Numerous conditions have to be met, before this order can be granted, namely:

  • The application must be made within six months of the child’s birth;
  • The surrogate mother must fully consent to the Parental Order and must understand that she will be giving up parental rights;
  • No payment should have been made to the surrogate mother save for necessary reasonable expenses. The Court can give retrospective approval to payments over and above reasonable expenses;
  • There must be a genetic connection between the child and at least one applicant for the Parental Order;
  • At the time of the application and the making of the order the child’s home must be with the person applying for the order; and
  • Either or both applicants must be domiciled in the UK.

The Law Commission says that a report on proposed changes in the law will be available within a year. There will then need to be an impetus to get any recommended changes in current surrogacy laws into new legislation so that all involved in surrogacy arrangements feel that the law is working to protect them and the child. Recommendations for reform include:

  • The principle of altruistic surrogacy, which operates in the UK, must be protected to reflect that surrogacy is a relationship, not a transaction.
  • Parental orders should be pre-authorised so that legal parenthood is conferred on intended parents at birth.
  • Intended parents should register the birth.
  • Parental orders should be available to single people who use surrogacy.
  • Parental orders should be available to intended parents where neither partner has used their own gametes (‘double donation’).
  • The time limit for applying for a parental order should be removed.
  • Parental order/surrogacy birth data should be centrally and transparently collected and published annually.
  • IVF surrogacy cycles and births should be accurately recorded by fertility clinics/ Human Fertilisation and Embryology Authority (HFEA).
  • NHS funding should be made available for IVF surrogacy in line with NICE guidelines.
  • The rules on surrogacy-related advertising and the criminalisation of this should be reviewed in the context of non-profit organisations.

The government is also recommended to do the following:

  • The Department of Health, in consultation with the surrogacy community, should draft and publish a ‘legal pathway’ document for intended parents and surrogates.
  • The Department of Health should produce guidance for professionals in the field, written in consultation with the surrogacy community for midwives and hospitals, Children and Family Court Advisory and Support Service (Cafcass) and clinics.
  • Surrogacy should be included in schools’ sex and relationships education (SRE) classroom curriculum (from primary) – linked to awareness of (in)fertility, family options for same sex partners etc.

At Cambridge Family Law Practice, we look forward to clearer, more up to date support for people going through surrogacy arrangements. If you have any queries regarding surrogacy, parental responsibility, parental orders, or any other family law question, you can call us on 01223 443333 and book an appointment to speak to Adam, Tricia, Sue, Simon or Gail.