Outdated surrogacy laws are to be updated following reforms outlined by the Law Commission of England and Wales and the Scottish Law Commission.
The commission has said the use of surrogacy – where a woman becomes pregnant and gives birth to a child to be brought up by another family – has increased in recent years and is recognised by the Government as a legitimate form of building a family.
Despite the increased demand, surrogacy laws have failed to keep pace. Dating in part from the 1980s, existing surrogacy laws often fall short in providing the right level of protection for all parties involved.
Under the reforms, a new system governing surrogacy agreements in which a new pathway would come into force, introducing a surrogacy route in which scrutiny of arrangements starts pre-conception.
Overseen by non-profit organisations operating under a regulatory body, the Commissions’ new pathway would ensure rigorous pre-conception screening and safeguarding. If the right conditions are met, it would allow the intended parents to become the legal parents of the child from birth, subject to the surrogate’s right to withdraw her consent.
The new system would improve the current process, which involves a sometimes complex and lengthy journey through the courts after the child has been born, resulting in some couples waiting up to a year after birth before they become legal parents of the child.
The report also outlines a clearer set of rules governing the payments that can be made to surrogates, under which “for profit” commercial surrogacy would continue to be strictly prohibited.
A Surrogacy Register would also be created under the new regime – allowing surrogate children to trace their birth origins later in life.
By having a well-regulated domestic surrogacy regime that works in the best interests of all involved, the Law Commissions’ reforms are designed to dissuade UK couples from opting for international surrogacy agreements, which can bring a greater risk of exploitation of women and children.
Commenting on the surrogacy law reforms, Professor Nick Hopkins, Family Law Commissioner at the Law Commission, said: “The use of surrogacy to form a family has increased in recent years, but our decades-old laws are outdated and not fit for purpose. Under current law, surrogacy agreements are often a complex and stressful process for all involved.
“We need a more modern set of laws that work in the best interests of the child, surrogate, and intended parents. Our reforms will ensure that surrogacy agreements are well-regulated, with support and security built into the system from the very beginning.
“By introducing a new regulatory route with greater legal certainty, transparency, and safeguards against exploitation, we can ensure that we have an effective regime for surrogacy agreements that places the interests of the child at their heart”
Professor Gillian Black, Commissioner at the Scottish Law Commission, said: “Our recommendation for a ‘new pathway’ ensures that critical screening and safeguarding measures for the surrogate and intended parents will take place before conception.
“These safeguards will be overseen by a state-regulated and approved body, which will provide support to all parties in their decision to enter a surrogacy agreement. The welfare of the child is paramount in all of our reforms.
“We hope that the Government will endorse these recommendations for law reform, to ensure that surrogacy law properly meets the needs of surrogate-born children, surrogates, and intended parents.”
The report will now be reviewed by the government for consideration to be brought into law.
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