Last year, the Law Commission of England and Wales and the Scottish Law Commission published their preliminary proposals on the reform of the law on surrogacy.
Surrogacy law to date has been inadequate and has resulted from various legislative reforms and case law which has developed over the last ten years.
The major problem with the current law is the complexity surrounding parenthood and parental responsibility and the fact that the surrogate will always be the legal parent of, and have parental responsibility, until a parental order has been obtained.
The current law means that many intended parents will not have legal parenthood or parental responsibility for children living with them until they obtain a parental order.
The law at the present time is very strict and there are many situations whereby parents are unable to meet the requirements of Section 54 of the Human Fertilisation and Embryology Act 2008 (HFEA) which can then impact on the welfare of the child.
The Law Commission’s provisional proposals on surrogacy law reform propose three routes to becoming a legal parent through surrogacy.
- If the UK surrogacy arrangements are within the new pathway then, as long as the right steps have been followed before conception and the surrogate does not object after the birth, the intended parents will be the legal parents from birth and can be registered on the child’s birth certificate without a court application.
- If the UK surrogacy arrangement falls outside the new pathway, which may be where pre-conception requirements have not been complied with, or the surrogate exercises her right to object after the birth, then in these cases the surrogate would be the legal mother of the child initially but the intended parents will then be able to apply for a parental order to become the legal parents.
- With regard to international surrogacy arrangements, the Secretary of State will have the power to designate countries from which surrogacy arrangements will be automatically recognised,
In reality it is likely to be another two years until any changes are made and is all subject to Parliament.
Therefore, at the present time, we are still left with the difficult area of parents applying for parental orders and the surrogate being the legal parent until the parental order has been granted.
This is an area of law that very much needs to be reviewed and changed.
If you wish to discuss this or any other children or relationship issues then please contact Suzanne Moore at Sinclair Law on 01625 526222 [email protected]