We have identified some areas of law that our experience and discussion with stakeholders suggest may require reform. They could be potential projects for the Programme. We would like to hear your views about these, and whether you think they should form part of our work over the next few years.

Surrogacy

Is the law governing surrogacy keeping pace with social change?

Various stakeholders have suggested to us that the law relating to surrogacy should be reviewed and Jane Ellison MP, Under Secretary of State for Health, has indicated her and the Government’s support for inclusion of such a project in our 13th Programme consultation.

The main legislation concerning surrogacy is the Surrogacy Act 1985 and (in respect of the making of parental orders) the Human Fertilisation and Embryology Act 2008. The law has struggled to adapt to changes in attitudes, a growing demand for surrogacy arrangements, and an increasing number of overseas surrogacy arrangements. There are a number of issues in the law that may be in need of reform:

  • Surrogacy and the single parent: There is no power for the court to make a parental order in favour of a single person (as opposed to a couple), which recently led to a High Court declaration of incompatibility with the Human Rights Act 1998 in the case of Re Z (A Child) (No 2) [2016] EWHC 1191 (Fam).
  • Parental orders:
    • There is potential uncertainty caused by surrogates (and sometimes their husbands) being entered as parent(s) on the birth certificate of a child born as the result of a surrogacy arrangement. Currently, parental orders can only be obtained after the birth of the child and upon an application to court by the intended parents. In one case, the effect of the law “was that the children were marooned stateless and parentless”;
    • We have been told that the conditions for making a parental order are unnecessarily restrictive.
  • The regulation of surrogacy: A project could consider the current regulation of each aspect of surrogacy arrangements, as well as the application of the welfare (of the child) principle in surrogacy arrangements.

What do you think?

We are interested in consultees’ views on the impact of these issues and whether they would be suitable for review by the Law Commission. We would also like to hear about any specific aspects of surrogacy law that consultees suggest require modification, simplification or reform. Please use this form to send us your comments, and email it to programme@lawcommission.gsi.gov.uk.

 

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