Plans to reform surrogacy laws are being examined by the Government. The Law Commission of England and Wales and the Scottish Law Commission have started work on a review of the laws around surrogacy after Government funding was agreed.
This is a huge step forward which the Commissions have described as an effort to make the rules “fit for the modern world”. Surrogacy arrangements are said to have increased tenfold in the past decade. Some consider the main reason for such a sharp increase is attributable to advances in assisted reproductive techniques and an increase in same-sex couples seeking to have children this way.
Professor Nick Hopkins, Law Commissioner for England and Wales, said “Our society has moved on from when surrogacy laws were originally introduced 30 years ago and, now, they are not fit for purpose.”
As the Law currently stands the surrogate mother is considered to be the legal mother of any resulting child. Furthermore if the surrogate mother is married at the time of the birth her husband is considered to be the legal father. The only option that intended parents currently have is to apply to the court for a ‘Parental Order’ which transfers the legal parenthood from the surrogate to the intended parents. Although the legal procedure for obtaining a parental order is quicker and considered by some to be less intrusive than the adoption process, it is a fairly costly and cumbersome procedure which takes many intended parents by surprise.
The Commissions have highlighted one of the problems with the law as it stands to be the way in which parental orders are granted which may create difficulties for new intended parents making medical decisions about the child.
The most obvious danger of the current system, however, is if the surrogate mother changes her mind about giving the child up after the birth which leaves intended parents in an impossible situation with a painful legal battle and few remedies available.
The Law Commissions have confirmed that the reforms will “consider the legal parentage of children born via surrogacy, and the regulation of surrogacy more widely“. The project is expected to last up to three years to develop law reform recommendations that work for everyone. The Commissions have hinted toward removing automatic rights from birth parents which would be a huge step forward.
The next few years will be an exciting time for intended parents and Law Practitioners such as Bishop & Sewell who specialise in this area of Law to see what lies ahead.