In the UK, the journey to surrogacy can be tricky for both parents-to-be and surrogates to navigate.
This isn’t helped by the fact surrogacy laws haven’t been properly updated for almost 40 years – despite medical advancements and a societal shift being witnessed in that time.
“Social attitudes towards surrogacy in the 1980s, particularly for same-sex couples, were vastly different and surrogacy is now much more commonplace,” Harriet Errington, family partner at law firm Boodle Hatfield, tells HuffPost UK.
But surrogacy has seen a surge in popularity in recent years – in part because of the progress in recognising the rights of same-sex couples, she says, but also because heterosexual couples are having kids later and can encounter difficulties conceiving naturally.
Suggested reforms to surrogacy laws – to improve the process for all involved – have now been put forward by the Law Commission of England and Wales and the Scottish Law Commission.
So what does this mean for prospective parents considering this route to having children? Here’s what you need to know.
What’s the deal with surrogacy laws right now?
Experts consider the UK’s current surrogacy laws to be quite backward.
Many other countries recognise surrogacy – where a woman becomes pregnant and gives birth to a child for another family – more openly, says Errington.
“The key legal challenge with the current system is that you can’t enforce surrogacy arrangements,” she explains.
This means a surrogate mother – who has no genetic link to the baby – is still considered the legal mother from the child’s birth under the law in England and Wales.
In order to change this, parents have to apply for a parental order so they can be deemed the legal parents.
But this application can’t be made until the child is six weeks old and the process can take many months to go through.
For parents this can be a real problem because in those crucial early weeks of a child’s life, they may be powerless to make important decisions, such as regarding the child’s health.
There’s also a very real underlying fear that a surrogate mother could change her mind and decide to keep the baby – and while this is rare, it is possible.
“This can cause a multitude of legal difficulties for the intended parents - and also for the surrogate mother,” says Errington.
Because of the challenges with the current system, lots of couples will go abroad to pursue surrogacy arrangements in countries such as the US.
What are the new reforms?
The biggest change would be that parents can become the child’s legal parents straight away from birth – but they need to follow a set pathway to achieve this.
So basically they’d need to jump through the right hoops – for example, getting medical and criminal record checks, independent legal advice, implications counselling and a written surrogacy agreement.
The surrogate mother would retain the right to object to the intended parents being the child’s legal parents, but she’d have to do so within six weeks following the birth.
There are no plans to legalise commercial surrogacy (where people pay the carrier) in the UK, because of the risk of women being exploited.
Instead, parents would be able to pay a surrogate’s insurance and medical costs, but not general living expenses and compensatory payments.
To address the lack of information surrogate children have about their origins, a Surrogacy Register would be set up which would hold information about the surrogate and the intended parents.
The commission also recommended that intended parents should be entitled to improved employment rights – such as an equivalent to maternity allowance and being able to take time off work to attend antenatal appointments.
It’s important to front up that these are suggestions – and it’s now down to the government to decide whether to move forward and update current legislation.
How would these changes impact people on this journey?
The changes would “hugely impact” anyone who is put off by the current uncertainty and difficulties of navigating the surrogacy process in the UK, suggests Errington.
“These reforms address the primary concerns of many intended parents and surrogate mothers alike and I anticipate we will see a dramatic increase in surrogacy arrangements in this country once the draft bill is enshrined in law.”
This is the hope for officials, as it’s believed international surrogacy accounts for up to half of surrogacy arrangements for parents from England, Wales and Scotland – and these setups might be open to exploitation.
There has been some disappointment that the reforms don’t go further to protect parents who do choose to go overseas for surrogacy.
Michael Johnson-Ellis, co-founder of My Surrogacy Journey, told PinkNews it could’ve included “more stringent processes” to protect intended parents when engaging with international surrogacy.
He also said it could do more to enable the parental rights of those using double donation – aka those who have chosen to have a child using a donor sperm and egg.
This is because, as it stands, intended parents are unable to apply for a parental order after a child is born if they do not have a biological link to them.
So what happens now?
In practical terms, if the reforms are accepted, it will take some time for the legislation to make its way through Parliament.
“Once it is enshrined in law, I will be interested to see how it pans out,” says Errington. “I believe these reforms really do help to address many of the issues with the current surrogacy legislation.”
The key question mark that remains is around commercial surrogacy and whether surrogate mothers ought to be paid.
“In my view this is such an emotive topic, which raises so many moral, ethical and philosophical conundrums, that I can fully understand the reasons for treading carefully at present,” she said.
“Whilst there is clearly scope for more to be done, I think that when you look at how far we have come, it is certainly a step in the right direction.”