What is the UK law on surrogacy?

The current UK law on surrogacy enables couples or individuals to become a child’s legal parents. Couples must wait 6 weeks after the child is born before being able to apply for a parental order or adoption to gain parental responsibility. This gives the birth mother the opportunity to change her mind if she wants to remain the legal parent of the baby herself. 

When a couple uses a surrogate the surrogate will be the child’s legal parent when they are born. In addition, the surrogate’s civil partner or spouse will be the second legal parent unless the surrogate mother didn’t consent to this. 

After 6 weeks, the surrogate parents can apply to transfer legal parenthood by going through adoption or making a parental order. A parental order can be made when one of the intended parents is genetically related to the child such as being an egg or sperm donor. On the other hand, an adoption must be applied for when the intended parents are not related to the child. 

Sometimes people make surrogate agreements which can be a good record of the surrogacy arrangement between the intended parents and the surrogate. However, it must be said that surrogacy agreements are not enforceable in UK law.

The current UK surrogacy laws don’t provide a great deal of protection or certainty for both sides and the process of gaining a parental order can be very long. As such, there have been some new surrogacy law reforms proposed to the government.

The new surrogacy law reforms

The Law Commission of England and Wales has published a joint report with the Scottish Law Commission to change the current surrogacy laws. The proposals are currently sitting with the government to review and approve. 

Surrogacy has increased over the years and it is only right that a law that was made in the 1980s should be updated to reflect modern life. The new law proposals will give everyone involved, particularly the intended parents, more security and clarity when going down the surrogacy route. The current process means that some couples wait up to a year after the birth of their child to become legal parents after applying for a parental order. 

The new law would allow intended parents to become legal parents from birth but the surrogate can withdraw their consent during this time. In addition, a surrogacy register will be created so that children can trace their birth roots if they wish to later on in their lives. The new system would also provide opportunities for people to do safeguarding checks both medical and criminal and have access to independent legal advice. 

One of the issues with the surrogacy system is the process of applying for a parental order. The Law Commission has recommended that the parental order application process is reformed to make it easier for courts to approve orders where the surrogate does not consent. 

Other proposals include having more clarification on payments that intended parents can make for the surrogate so that both parties are protected. Payments that may be allowed can include medical, well-being and support costs, whereas prohibited payments may include living expenses and compensation for carrying the child. 

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