Hetero-sexual, same-sex couples and single individuals over 18 are eligible to enter into altruistic or compensatory surrogacy arrangements in England and Wales. Commercial surrogacy is not permitted and there are strict rules regarding payments to a surrogate. Matching with a surrogate can be a lengthy process and intended parents are best searching through specialist agencies. Our domestic law deems the surrogate to be the child’s legal parent, irrespective of the lack of genetic affiliation, unless and until the intended parent(s) apply to a Court for a Parental Order. The Parental Order is a legal mechanism which extinguishes the surrogate’s parental rights (and those of her spouse), and confers parentage upon the intended parent(s) upon certain criteria being met.
The current surrogacy laws are complex and outdated. However, wholesale reform is in the pipeline: the Law Commission recently produced a comprehensive report and a draft bill awaits parliamentary debate. The recommendations include a new Pathway to include rigorous pre-conception screening and safeguarding. In a significant change, if certain conditions are met, intended parents would become the legal parents of the child at birth, subject to the surrogate’s right to withdraw her consent. There are clearer rules around payments to the surrogate and plans for the formation of a Surrogacy Register allowing surrogate children to trace their birth origins later in life.
However, intended parents wishing to enter into commercial surrogacy arrangements abroad will still have to apply to the Court for a Parental Order in the current format. This means intended parents will still face a lengthy wait until they are recognised as the child’s legal parents. They will also need to obtain retrospective authorisation from the Court for all payments to the surrogate.
Family building via surrogacy is becoming more prevalent. However, the laws around surrogacy can be difficult to navigate. To speak with a specialist surrogacy lawyer, please contact Sarah Williams at swilliams@phb.co.uk
To learn more about surrogacy listen to our podcast series on the subject here: https://podcasts.apple.com/gb/podcast/the-payne-hicks-beach-podcast/id1553718527
