Becoming a parent is one of the most significant events in many people’s lives and some may choose to consider surrogacy.

Surrogacy is when a woman gives birth to a baby for another person or couple, known as the “intended parent(s)”. There are two types: full surrogacy, where the intended mother’s eggs are used; and partial, where the surrogate’s eggs are fertilised by the sperm of the intended father.

Acceptance of surrogacy and the number of children born in this way has increased almost fourfold over the past decade, with estimates of 400 surrogate births annually.

In April 2023 The Law Commissions of England and Wales, and of Scotland, published a joint report recommending a new system of governing surrogacy.

Parliament will now consider the recommendations proposed. Thereafter a full response to this must be made within one year (April 2024). The proposed reform is the biggest change to the regulations surrounding surrogacy for years. The proposed changes are a step forward and will go a long way towards ensuring that the motivations of the parties involved remain altruistic rather than commercial.

It is also hoped that the new recommendations will encourage intra-UK surrogacy agreements, reducing the potential exploitation of mothers in other countries and their associated ethical concerns.

The law surrounding this will continue to be that the welfare of the child is of paramount consideration for the court.

The reforms outline a pathway to legal parenthood in domestic surrogacy arrangements. Currently intended parents must apply to the court for a Parental Order after the child is six weeks of age and, the surrogate mother must consent to the Parental Order being granted.

One of the key features in the proposed reform is in respect of who would be the child’s legal parents at birth. Consent is key here.

Unless consent is withdrawn by the surrogate mother before birth, the intended parents would be the legal parents at birth. If consent is withdrawn prior to birth the surrogate mother would be the legal parent and the intended parents would need to apply for a Parental Order. If consent is withdrawn after six weeks by the surrogate mother, she may apply to the Court for a Parental Order.

The reform also provides clarity on acceptable payments, known as “permitted payments” to a surrogate mother. These preclude compensatory payments and living expenses such as rent.

A surrogate mother should not be better or worse off from entering into the arrangement, and commercial surrogacy is expressly prohibited.

Other reforms include:

  • A Surrogacy Register to hold information about the parties involved and address the lack of a framework allowing surrogate-born people to access information about their surrogate and intended parents.
  • New Guidance on nationality and immigration to deal with international arrangements which risk a child facing a prolonged wait in a foreign country for the correct documentation to enter the UK.
  • Pre-conception safeguards, currently lacking, to protect the interests of all participants.

In summary, The Law Commissions’ report is a positive step forward.

Kara MacGregor-Duke is an Associate at Complete Clarity Solicitors and Simplicity Legal.