A PATHWAY TO CLARITY: THE LAW COMMISSION AND SURROGACY 

Published on 30 March, 2023 | Emma Hubbard

Moving from day-to-day, it might seem that our lives and those of individuals around us remain within a relatively familiar frame.

However, if we take a moment to reflect, we can discern how family life in the UK has changed just as surely and as rapidly as the fabric of the towns and cities which we call home.

It is a fact that the law moves at something of a glacial pace by comparison.

Last year saw the introduction of ‘no-fault’ divorce, the most significant update of family law in half a century (https://www.legislation.gov.uk/ukpga/2020/11/contents/enacted).

Those 50 years, of course, had seen enormous shift, as the marriage number of couples marrying fell and individuals choosing to cohabit increased.

Trying to ensure that legislation remains relevant to the lives of those people who are bound by it is a joint exercise on the part of Government and the Law Commission.

Back in 2017, the Commission consulted the British public on what topics it should recommend to the Lord Chancellor as possibly being worthy of an update (https://www.lawcom.gov.uk/project/13th-programme-of-law-reform/).

One of the 14 themes chosen was surrogacy.

It was notable because the last significant piece of surrogacy law came into effect in 2008 (https://www.legislation.gov.uk/ukpga/2008/22/contents).

Since then, the attitudes of the public and judiciary to surrogacy have continued to evolve.

As my colleague Melanie Kalina pointed out three years ago, “surrogacy is now considered a more legitimate way to start a family” (https://hallbrown.co.uk/a-step-change-for-surrogacy/).

In launching a consultation in June 2019, though, the Law Commission recognised that despite becoming more popular, surrogacy was still not without its difficulties.

Under the law, as it stands, intended parents do not assume responsibility for a child born as the result of a surrogacy arrangement upon its birth and sometimes have to wait as much as a year for a court order making them its child.

Furthermore, such a parental order can only be made with the free and full consent of the surrogate involved. If she chooses to withheld consent, intended parents can then only apply for a Child Arrangement Order to determine who the child will live or spend time with.

That very potential arose in a Court of Appeal case in January which was the result of a surrogate seeking to remain “a significant person” to the child whom she had given birth to (https://www.judiciary.uk/wp-content/uploads/2023/01/C-A-Child-Judgment.pdf).

That complication hasn’t stopped an increasing number of families relying on surrogacy. The number of parental orders made in the year to March 2022 was 248 per cent higher than in 2011 (https://www.gov.uk/government/statistics/family-court-statistics-quarterly-july-to-september-2022/family-court-statistics-quarterly-july-to-september-2022#overview-of-the-family-justice-system).

In addition, many UK families have opted to use surrogates based overseas. One recent report suggested that six babies a month were brought back to the UK during 2022 by British parents, having been born to mothers in countries such as Nigeria and Georgia (https://www.financeuncovered.org/stories/surrogacy-law-reform-law-commission-cafcass-low-cost-surrogates-new-life-baby-broker).

The Commission’s consultation process has been lengthy and involved feedback from 340 people and groups suggesting that the law “was not fit for purpose” (https://www.lawcom.gov.uk/project/surrogacy/).

It has now delivered its final report and draft legislation with the intention of offering “more clarity, safeguards and support – for the child, surrogate and parents who will raise the child” (https://www.lawcom.gov.uk/project/surrogacy/).

The recommendations provide for what the Commission describes as a “surrogacy pathway”, including a new regulatory regime to govern surrogacy agreements.

There would be “rigorous pre-conception screening and safeguarding” and intended parents would become the legal parents of the child from birth, “if the right conditions are met”.

The Commission hopes that having improved oversight and support means that UK couples would not feel the need to pursue surrogacy agreements overseas “which can bring a greater risk of exploitation of women and children”.

As I’ve been telling Jonathan Ames, the Times’ Legal Editor, the proposals are, in my opinion, transformational (https://www.thetimes.co.uk/article/4535801e-cd70-11ed-adc8-dcfa63cb4163?shareToken=97b45539902bdd33762ba392df82b57c).

Whilst the UK has for many years lagged behind many other countries in how they regulate such arrangements, the recommendations bring us closer to overseas practices.

On the basis of conversations with clients and the figures from courts across England and Wales, it is clear that there are many individuals interested in taking advantage of the opportunities which surrogacy presents to start a family.

It does remain to be seen whether the new draft legislation navigates its way through parliament unaltered and, even if it does, how long it will be before it comes into effect.

I suspect that there is no shortage of couples hoping that it happens very soon.