Reforms to surrogacy law are urgent

With the right safeguards, the intended parents should be the legal parents from birth.

Word that the Law Commission is delaying its recommendations to reform the antiquated laws around surrogacy by at least six months is a cause of consternation and disappointment — not least because the government’s advisory body has not provided a reason or notice for the delay.

It cannot be overstated how outdated current laws on surrogacy are. Written nearly 40 years ago, they are barely fit for a modern society.

The laws come from a different era, when surrogacy was extremely rare, reproductive medicine was still in its infancy, homophobia was alarmingly commonplace and there was no legal recognition for same-sex couples.

Today, science and social attitudes towards surrogacy have advanced immeasurably and the practice has become increasingly common. In the nearly ten years since the passage of the same-sex marriage legislation, surrogacy rates have quadrupled.

But the law is a quagmire to navigate. A parental order — the transfer of legal parentage from the surrogate to the intended parents — cannot be granted until at least six weeks after the birth of a baby. More often it takes many months and several court hearings, at no small financial and emotional cost.

During this process, legal parentage remains with the surrogate mother — and even her husband, if she is married — who may not be involved in the child’s life at all. This can cause enormous practical problems due to the inability of the intended parents to consent to medical treatment or make other important decisions relating to the child.

Such is the morass of the current system that many intended parents look abroad for treatment. This is a situation that any reformed legislation should seek to discourage, given the potential for abuse and the challenges in bringing a child back to the UK, which can mean leaving babies overseas for months while waiting for their travel documents.

Yet there is hope. Proposals currently being considered by the commission include mechanisms to streamline this process, providing a pathway to parenthood with pre-conception safeguards to protect the interests of all those involved in a surrogacy arrangement. A key proposal is that the intended parents are the legal parents of the child from birth, subject to the surrogate’s right to object during a defined period.

There is debate as to whether the proposals go far enough, but the consensus among specialists is that these are much needed steps in the right direction. That is why the unexplained delay is such a blow. It passes up an opportunity to make meaningful improvements to the lives of all involved and leaves many vulnerable in the meantime.

This article first appeared in The Times in October 2022.