A case in point: why we need better law for UK surrogacy

March 24 2014

Brilliant Beginnings is campaigning for a better legal framework for UK surrogacy, and a recent UK court decision shows why.

A UK couple with a son through traditional surrogacy separated (and later divorced) and missed the strict deadline to apply for a parental order. When they ended up in dispute about care arrangements, the court had no power to sort out their status as parents; the surrogate therefore remained the legal mother and the boy remained a ward of the court (more about this on the Natalie Gamble Associates blog).

The judge said the case was a cautionary tale about DIY informal surrogacy arrangements which do not involve fertility clinics.  But there is a much bigger issue here, which goes far beyond the circumstances of conception.  The issue here is the deficiency of the law; the court's powerlessness to extend the parental order deadline and to award parenthood to parents who have separated during the process, even where doing so is clearly in the child's best interests.  The real problem is a legal framework which treats the wrong people as the legal parents, and then ties the court's hands in what it can do post-birth to rectify that.

And although the judge in this case criticised this 'informal' surrogacy arrangement, we need to be clear that UK law makes all surrogacy arrangements informal. Unchanged since the 1980s when policy was to discourage surrogacy, UK law restricts the operation of surrogacy agencies, fails to regulate surrogacy services, makes surrogacy agreements unenforceable, and criminalises lawyers and other professionals who draw up contracts.  Yes, the involvement of a fertility clinic is often helpful, but medical professionals cannot and do not provide legal advice or support for a surrogacy arrangement throughout the process.  The issue of surrogacy being available without good quality regulated support goes far beyond the question of whether a fertility clinic is involved.

Brilliant Beginnings wants to see things change in the UK. We are calling for a framework for surrogacy in the UK which happens upfront rather than after the event.  We want to see sensible regulation of third party agencies, so that those going into surrogacy get the support and information they need at the outset, just as those conceiving through egg or sperm donation do. 

We also want to see a framework in which the right people are parents from the start.  Those who commit to conceiving a child should (where everyone agrees) be given legal responsibility and parenthood immediately from birth.  A framework like this would eradicate the issues which arose in this case, and ensure that the welfare of the child is put front and centre.

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