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Modernising UK surrogacy law – the way forward

Posted on 4 August 2022

1-7 August 2022 marks National Surrogacy Week, a week-long celebration of UK surrogacy and UK surrogacy choices.

This year marks the 31st anniversary of the establishment of the Human Fertilisation and Embryology Authority ('HFEA'). Whilst the UK has come a long way since the HFEA was founded in 1991, when it comes to domestic and international surrogacy arrangements, there is still a long road ahead.

Despite an increase in demand (according to research by the University of Kent, Parental Order applications have more than tripled in number between 2011 and 2020) and a much greater awareness of surrogacy, the law regulating surrogacy in the UK is outdated and is widely considered no longer fit for purpose. This has led to the Family Court frequently taking a creative approach in interpreting the legislation to achieve outcomes which are focused on the best interest of the child born via surrogacy.

Recent cases of note

A recent example of the Family Court's welfare-centred approach to interpreting the law is a case from June 2022, when a widower won the right to have a baby via surrogacy using the embryo of his late wife. The HFEA had rejected his request to use their last frozen embryo, created using his sperm and his late wife's eggs, because she had not provided written consent for posthumous surrogacy when undergoing the fertility treatment. The Judge in the case ruled that the embryo could be used as the couple had not been given sufficient information or opportunity by their clinic to consent to this scenario. She was satisfied from the available evidence that the late wife would have so consented had proper information been given to her. The Judge noted that the relevant female consent form did not provide a clear opportunity to consent to posthumous surrogacy, unlike the male consent form, and suggested that the HFEA may want to consider reviewing it to avoid this situation occurring again.

This case highlights how crucial it is for all parties to clearly set out their intentions at the outset of their fertility or surrogacy journey when signing paperwork, including the need to consider worst case scenarios to ensure every possibility has been dealt with and any necessary wishes recorded on paper.

Also in June 2022, the European Court of Human Rights ('ECHR') dismissed the case of a six-year-old girl born from a surrogacy arrangement who sought to have her biological father named on her birth certificate. The surrogacy arrangement involved the intended parents, a same-sex male couple with one being the sperm donor in the arrangement, a surrogate and her husband and an anonymous egg donor. In accordance with current UK surrogacy laws, the surrogate and her husband were listed on the child's birth certificate as mother and father. Due to a breakdown in relations between the couples prior to the child's birth, the surrogate and her husband did not inform the intended parents of the birth until after it was registered and then refused to consent to a Parental Order being made. As a result, the intended parents, including the child's biological father, could not be recognised as the child's legal parents.

Following these events, the intended parents commenced proceedings in the Family Court, which made a Parental Responsibility Order in favour of the intended parents, giving both couples a say in important matters relating to the child. A Child Arrangements Order was also made, declaring that the child should live with the intended parents, who should make day-to-day decisions for her, and her name should incorporate their surnames. It was also ordered that she should have regular contact with the surrogate and her husband.

Despite these changes, the child's birth certificate remained the same. She brought a case to the ECHR that the rules in relation to who was listed on her birth certificate were outdated and denied her the social and emotional benefits of having legal recognition of her biological father and her day-to-day reality. The ECHR rejected this argument and confirmed that she was not wholly deprived of a legal relationship with her biological father as a result of not having him named on her birth certificate.

This case highlights how tumultuous surrogacy arrangements can become. It demonstrates why the upcoming recommendations anticipated from the Law Commission later this year are key to the development of successful surrogacy in the UK. Of particular importance is the new pathway plan to establish greater protections and procedure to prevent such a breakdown between the parties.

Future developments

The Law Commission's consultation in respect of surrogacy reform was completed in October 2019 and its final recommendations, along with a draft Bill, are expected to be reported in autumn 2022. Some of the key provisional proposals put forward in the Law Commission's consultation paper include:

A new pathway plan to establishing surrogacy arrangements, including:

  • intended parents finding their surrogate through registered organisations or clinics;
  • medical and criminal record checks;
  • independent legal advice and counselling;
  • ensuring a written agreement is drawn up between the parties; and
  • a new national register recording information on the surrogate, intended parents and any sperm or egg donor.

This is intended to ensure that the intended parents and surrogate understand what they are agreeing to and the protections that are in place to keep them and the child safe, reducing the risk of surrogacy arrangements breaking down.

  • Assigning legal parentage to the intended parents from the child's birth (provided the new pathway requirements are met and subject to the surrogate's right to object during a defined period).
  • Permitting the payment of surrogates (under current UK surrogacy law intended parents can only pay for the surrogate's 'reasonable expenses').
  • Allowing international surrogacy arrangements to be recognised in the UK, making the process quicker and easier when intended parents are bringing their child back to the UK.

The modernisation of UK surrogacy law is urgently required and we look forward to seeing which of the above proposals are included in the Law Commission's draft Bill this autumn.

Becca Jones and Antonia Felix are members of Mishcon de Reya's Modern Families Group.

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