Surrogacy and the need for reform « McAlister Family Law

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Surrogacy and the need for reform

Jonathan Casey

21.05.2020

The first same-sex couple to have obtained IVF treatment on the NHS will welcome a baby boy in August 2020, with the assistance of a surrogate hired through a private company. Will this highlight the need for Surrogacy Law reform?

Recent news developments, coupled with the highly successful BBC drama The Nest, have highlighted surrogacy issues in the UK and the need for reform.

The UK’s surrogacy laws were written in the 1980s and it is easy to see why those involved in modern UK surrogacy have identified an urgent need for reform. In the UK, there are many concerns for the parties involved in surrogacy:

  • Surrogacy agreements are not enforceable
  • The surrogate and her spouse are the legal parents of the baby, until parenthood is transferred
  • Parents who have children through surrogacy overseas are the legal parents in the country where their child or children are born but they are not recognised as parents in the UK
  • The court process to transfer parenthood can take up to one year after the birth of the child
  • The current law prohibits payment to a surrogate but allows reasonable expenses. However, case law shows that compensation is authorised in some cases. Therefore, the rules can be confusing for parents considering what reasonable expenses are.  
  • It is illegal in the UK for surrogate agencies to make a profit and it is also illegal to advertise
  • Solicitors are often asked to advise, prepare and negotiate surrogacy agreements by parents. However, solicitors are prohibited from doing so.   

Considering the above, it is not surprising that parents are calling for reform to clarify the framework. Some judges have also described how the law is ‘conflicting’ and have called for better regulation of surrogacy in the UK.

Further issues were also highlighted in the recent Supreme Court case of Whittington Hospital NHS Trust v XX (2020). Although this case relates to clinical negligence, with the claimant seeking damages to fund surrogacy arrangements, it has kept surrogacy in the news and shows that more parents will rely on surrogacy arrangements in the future.

Reform

More parents want to find surrogates to assist them, and with same sex couples successfully using IVF on the NHS with a surrogate, it is clear that parents and reproductive clinics need a framework that will assist all involved. The framework needs to be clear and not difficult to interpret. The Law Commission is reviewing surrogacy law, but many parties would welcome a legal mechanism that enables the intended parents to be recognised as the child’s legal parents from birth, and UK law that reflects reality and works with parents and children born through surrogacy in the UK and abroad. Written surrogacy agreements before conception would also assist and safeguard parties. Parents will hope that recent cases and news coverage will prompt this reform and provide clarity for all involved.

 

If you are unsure of the current law and need assistance regarding surrogacy, you should obtain advice from a specialist family lawyer. Get in touch today. We're here to help.

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