The Law Commission announced this week that surrogacy will be part of its next programme of work. This is fantastic news, marking the start of the first proper review of UK surrogacy law in more than 20 years. We hope it will lead to sensible recommendations as to how UK surrogacy law should be brought up to date, which will in due course be implemented by Parliament.
It is widely acknowledged that UK surrogacy law is in desperate need of reform, with those calling for an update including High Court judges, academics, affected families and all the UK's main surrogacy organisations. UK surrogacy law is creaking under the strain as surrogacy becomes more common and more diverse.
The Law Commission is an independent body set up by Parliament to keep the law under review. It looks at specific areas of law identified as being out of date, consults widely and then proposes changes to Parliament to make the law simpler, more accessible, fairer, modern and more cost-effective.
In May last year, following the ruling by the President of the Family Division that UK surrogacy law was incompatible with the Human Rights Act for single parents, the government indicated that it would welcome a wider Law Commission review of UK surrogacy law.
The Law Commission shortlisted surrogacy as a possible topic to be included in their 13th programme of work earlier this year, and announced in the last few days that surrogacy had made the list.
Surrogacy law was written in the 1980s and has not been properly updated since. It dates from a time when surrogacy was rare and treated with caution, when the opportunities available for matching via social media and going overseas had not even been dreamt of. The world has changed radically since the 1980s and surrogacy law has not kept pace.
The Law Commission has said:
"The law has fallen behind changing social attitudes and the increasing prevalence of surrogacy, including surrogacy arrangements with international aspects. For example, courts have struggled to implement the statutory conditions for a Parental Order because the paramount position of the child’s best interests makes it difficult for the court to refuse to recognise an existing relationship between the intended parents and child. Consequently, courts have extended or modified many of the statutory requirements for a Parental Order, but case law has not been able to resolve the underlying problems in the statute, or find solutions to all difficulties. One requirement, that an application for a Parental Order be made by two people, has been declared to be incompatible with the European Convention on Human Rights...
"We take the view that the law relating to surrogacy is outdated and unclear, and requires comprehensive reform. Reform will deliver significant benefits of clarity, modernity and the protection of those who enter into surrogacy arrangements and, most importantly, of the children born as a result of such arrangements."
The Law Commission will spend 2-3 years from Spring 2018 looking at how UK surrogacy law currently works in practice, the ways in which it is outdated, and making recommendations as to how it should change. The government will then decide whether to implement its proposals and, if so, there will be a Parliamentary process to change the law.
The process will not be an instant one, but it will be thorough. And with so many myths and misconceptions surrounding surrogacy we think that is absolutely the right approach.
For more information about our campaign for surrogacy law reform, and how we think the law should change, see http://www.brilliantbeginnings.co.uk/campaigning/simplify-surrogacy-law.