The law relating to surrogacy is currently being reviewed by the Law Commission to see if it is fit for purpose. As a lawyer practising in this area and dealing on a day to day basis with surrogates and intended parents, I can tell the Law Commission it most certainly is not.
The speed of change within the medical sphere, social relationships and social norms over the past 10 years of itself render the current law out of step with the issues the Courts now have to determine in this area.
The Courts cannot change the law as it appears in the statute. The Court’s role is to interpret the law and apply it to the facts of the particular situation before them. In one respect, the Courts have already told parliament that the law in relation to surrogacy needs changing.
That is in relation to applications being brought for Parental Orders by single applicants.
At the moment, the law prevents single applicants from having a Parental Order. That means that if a single person creates their family using a surrogate then legal parentage cannot be transferred from the surrogate to the single parent by way of a Parental Order as it can in the case of a couple creating a family using a surrogate.
In a recent case, the Court expressed the view that the law was discriminatory against single persons and made a formal declaration that this was incompatible with EU law.
This has been acknowledged by Parliament who have prioritised changing the law to ensure single applicants can make applications for Parental Orders. At the time of preparing this article, it looks as though that amendment will be subject to a Parliamentary vote on 20th December 2018.
The current draft also gives single persons who already have a family through surrogacy a six month window in which to make an application for Parental Order.
This change is to be welcomed. However, the result of the Law Commission’s full review into surrogacy law will not be available for many months to come. In my view there ought to be wholesale changes in the way both society and the law regard surrogacy arrangements.
The former President of the Family Division – the highest family judge in England and Wales – has recently expressed a view that surrogates ought to be able to be paid commercially for their role. At the moment a surrogate can only be reimbursed her “reasonable expenses”.
Surrogates themselves may take issue with former President’s view as there is a strong sense within the surrogate community that the altruistic nature of surrogacy in the UK should be protected over the commercial practices which happen overseas.
This is something that the Law Commission will have to consider. Another area where the Law Commission may direct their attention is the fact that at present, at the birth of the child, the surrogate is the legal mother.
She must consent to that legal motherhood being transferred to the intended parent if a Parental Order is to be made. There is an obvious risk here to the intended parents that if the surrogate will not consent, they are not in a position to act as legal parents with all that entails e.g. providing the consent to medical treatment etc.
However, surrogates too feel vulnerable – they may face either the intended parents refusing to take the baby and/or that they have to make key decisions in the early weeks of life for a child that they do not consider to be theirs.
One of the things the Law Commission might consider is changing the law so that the intended parents are parents at birth. That may bring its own issues around consent and how medics handle pregnancies if an issue arises in the delivery room over who the legal parent is.