Surrogacy law reform

 

At Brilliant Beginnings we are passionate about improving the law. We have been at the forefront of the campaign for UK surrogacy law reform since its very start in 2007.

Current UK law on surrogacy – a restrictive framework in which surrogacy is permitted but not supported:

Surrogacy agreements are unenforceable

The surrogate and her spouse are the child’s legal parents

The court process for transferring parenthood takes up to a year

The post-birth criteria assessed by the family court for transferring parenthood are restrictive and exclude some families

Children born through international surrogacy are their parents’ legal children in the country of birth but not in the UK

Advertising and professional services for surrogacy are restricted

Although UK law appears to restrict payments to surrogates to ‘reasonable expenses’, the court can (and does) authorise compensation payments

Why does UK surrogacy law need to change?

UK surrogacy law was written in the 1980s, when surrogacy – in its infancy – was feared to be fraught with risk, and there was widespread disapproval of non-traditional families.  Since then, surrogacy has grown (to at least 400 surrogacy births a year to UK parents) and families have diversified. Thirty years’ experience has taught us that surrogates almost never change their minds, and that children thrive if they are loved, regardless of the number or gender of their parents.

The law has not kept up. While other parts of fertility law have been modernised, surrogacy law has remained unchanged. The surrogate and her husband are the legal parents, making informal surrogacy arrangements frayed with vulnerability for everyone.  The UK framework feels murky. Not enough surrogates come forward.  Fundamentally, UK law fails to respect a surrogate’s decision to carry a child for someone else, and fails to recognise that surrogacy involves shared intention to conceive a child together, and not the surrender of a child.

More than half the UK parents through surrogacy are now driven overseas, seeking greater legal certainty and a more reliable process for finding a surrogate.  International surrogacy brings challenges, including UK children born stateless and parentless, ethical concerns and high costs.

Meanwhile, the system of transferring parenthood after birth via a parental order has been stretched to breaking point.  The family court has faced many cases in which the post-birth criteria don’t quite fit but the court still needs to safeguard the child’s welfare.  In some, the law has been creatively extended but in others children have been left in permanent legal limbo.  The result is a mess and a fudge. High Court judges have described UK surrogacy law as ‘irreconcilably conflicting’ and ‘the very antithesis of sensible’ and, in case after case, have called for ‘better regulation’ of surrogacy in the UK.

There is widespread consensus that reform is long overdue.

Stats and figures

Parental order applications after surrogacy births 2008

Parental order applications after surrogacy births 2017

Percentage of cases involving overseas births 2015-17

What we are calling for

 

A legal mechanism which recognises shared intention and enables the intended parents to be the legal parents from birth

Written surrogacy agreements and other sensible protections before conception

Prompt recognition of surrogacy children born overseas so none are stateless and there is no long wait to come home

Within the existing non-profit model, more workable rules for surrogacy services and an easing of the advertising restrictions

Rights to information for surrogate-born people, in line with those of donor-conceived people

Acceptance that there is no bright line between surrogate expenses and compensation, so that financial arrangements can be managed more honestly and transparently

A continued UK surrogacy culture of altruism and strong relationships within a legal framework which is more clear, certain and transparent

Want to know more?

Our Parliamentary briefing on surrogacy

Brilliant Beginnings regularly works with Members of Parliament. Read our Parliamentary briefing summarising surrogacy and the need for law reform for busy MPs.

Our comment in the Guardian

“Surrogacy isn’t about money, but the law must change to benefit women”

Bionews comment

“What the Handmaid’s Tale has taught us about surrogacy”

The Law Commission review

The Law Commissions of England and Wales and Scotland are currently reviewing UK surrogacy law and have already made provisional recommendations about how the law should change.

From our Surrogacy Information area

What is surrogacy?

Altruistic surrogacy and commercial surrogacy

Why do women become surrogates?

Want to get involved?

Stay up to date. Sign our petition. Write to your MP.