Lady Paton

Surrogacy is where a woman bears a child on behalf of someone else or a couple, who then intend to become the child’s parents (the intended parents). Surrogacy is legal in the UK, and is recognised by the government as a legitimate form of building a family.

However, change is needed to make sure the law works for everyone involved. To reflect the wishes of surrogates and intended parents, the law commissions are proposing to allow intended parents to become legal parents when the child is born, subject to the surrogate retaining a right to object for a short period after the birth.

This would replace the current system where the intended parents must make an application to the court after the child has been born, and do not become legal parents until the court grants them a parental order. The process can take many months to complete.

This proposal for the creation of a new surrogacy process or “pathway” is one of several that the law commissions are now consulting on which aim to bring greater certainty, put the child at the heart of the process and provide comfort and confidence to both the surrogate and the intended parents. Other proposals include:

• The creation of a surrogacy regulator to regulate surrogacy organisations which will oversee surrogacy agreements within the new pathway.
• In the new pathway, the removal of the requirement of a genetic link between the intended parents and the child, where medically necessary.
• The creation of a national register to allow those born of surrogacy arrangements to access information about their origins.

Lady Paton, chair of the Scottish Law Commission, said: “Surrogacy has become a significant issue in today’s society. The interests of all the parties involved must be properly regulated and protected. That is the focus of our proposals.”

Sir Nicholas Green, chair of the Law Commission, said: “More and more people are turning to surrogacy to have a child and start their family. We therefore need to make sure that the process is meeting the needs of all those involved.

“However, the laws around surrogacy are outdated and no longer fit for purpose. We think our proposals will create a system that works for the surrogates, the parents and, most importantly, the child.”

Dustin Lance Black, surrogate father and campaigner, said: “Without our wonderful surrogate and clear surrogacy law, we would not have been able to have our first child or begin building the family we’ve always wanted.”

“Good, clear law helps people make stronger, clearer decisions. Solid, definitive surrogacy law in the UK will have the power to keep surrogates, egg donors, intended parents, children, and families safe. This consultation is vital for ensuring the UK succeeds in building the best surrogacy law in the world. I hope as many people as possible can get involved and respond.”

The new process would also entail safeguards – such as counselling and independent legal advice – for those entering into the surrogacy arrangement. These would reduce the risk of the arrangement breaking down which can cause great distress for all involved.

A surrogacy regulator and regulated surrogacy organisations would oversee these arrangements and ensure standards can be monitored and kept high.

For surrogacy arrangements that do not qualify for this new regulated process, the law commissions are also proposing amendments to improve regulation of the existing parental order route which would aim to make the law clearer, easier to apply and more cost-effective.

At this point, the commissions are not putting forward any proposals around payments to the surrogate. However, as part of the consultation, the commissions want to understand public views on surrogacy payments.

The consultation therefore includes questions around the categories of payment that the intended parents should be able to pay to the surrogate, to seek a consensus on this issue.