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Surrogacy reforms set to provide clarity and transparency

11th July 2019

Surrogacy reforms set to provide clarity and transparency

Surrogacy is an increasingly viable option for couples unable to conceive. However there is a general consensus that the laws behind surrogacy are in need of updating, and a West Midlands’ family law expert believes that changes which are being proposed  to surrogate laws will offer a greater degree of transparency and clarity to everyone involved. 

Richard Port a specialist family solicitor at Higgs & Sons says: “Surrogacy guidance currently comes via case law and legislation such as the Human Fertilisation and Embryology Act 2008, which provides some limited regulation on surrogacy in the UK.

 

“However the guidelines are unenforceable and therefore, intended parents cannot demand that the surrogate hand over the child unless both parties agree. 

“Furthermore, once a child is born via a surrogate, the intended parents do not have automatic parental responsibility, nor is the surrogate’s own parental responsibility for the child discharged. The intended parents must apply to the court for a Parental Order in order to formalise their parental responsibility and to remove that of the surrogate mother.”

 

Would-be parents cannot apply for a Parental Order until six weeks after the child’s birth, and it can only be done with the consent of the surrogate. 

Richard added: “The Government has realised that surrogacy laws do need to be updated and have recently published a consultation paper ‘Building Families Through Surrogacy’, which sets out proposed reforms to ensure that surrogacy continues to be a viable option.

 

“Under the reforms the Government proposes to create what is known as the ‘pathway to legal parenthood’, a new route for intended parents to become the legal parents of a child born through surrogacy.” 

As the law stands currently, intended parents are not the legal parents of the surrogate child at birth. But the reforms would ensure that if the requirements of the new pathway are met, and subject to the surrogate’s right to contest during a defined period, the intended parents will automatically become the legal parents of the child from birth once that period has passed. Crucially, this would mean that there would no longer be any need to apply to the courts for a Parental Order.

 

The Government also understands that there have been problems with surrogate born children in relation to not being able to obtain information on how they were conceived. Under the reforms, it is proposed that a new national surrogacy register is created that will store information about the surrogate, the intended parents and any sperm or egg donors. This will allow surrogate children to find out about their heritage without difficulty. 

Richard said: “With the increased use of international surrogates, there is an increased risk of a child being left in a foreign country while waiting for a passport or travel document to enter the UK. Under the reforms, the Government is looking to make it quicker for the child to enter the United Kingdom which will hopefully prevent delay.”

 

At present, surrogates are allowed to be paid ‘reasonable expenses’ but cannot be given financial incentive for agreeing to be a surrogate. The law on payments, however, is not clear and intended parents have found it difficult to apply case law and legislation to their own circumstances. The Government is inviting views from consultees on potential categories of payment that intended parents would be able to pay the surrogate.

 

Richard concluded: “The Government is concerned that there are not enough safeguarding measures in place to protect surrogates and intended parents. Therefore, if the new pathway to legal parenthood is introduced, they are looking to simplify the steps the parties should take from pre-conception to post-birth which will include medical checks on the surrogate, her spouse or partner, the intended parents, enhanced criminal records on all parties, along with an assessment on the welfare of the child to be born through surrogacy.

 

“If introduced, this will be a great step forward to create transparency and clarity for all those involved.

 

“We will watch this space and see what the Government’s final recommendations are for the reform after consultation closes on Friday 27 September 2019.”

 

For further information or advice on contact Richard Port or a member of the Family Team on 0345 111 5050.

 

 

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