Author: Fraser Pennie
Surrogacy is the practice of a woman (the surrogate) becoming pregnant with the intention of handing over that child to the intended parents after the birth. In 2019, the Law Commission and the Scottish Law Commission published their consultation paper, which has reviewed the current legal framework for surrogacy arrangements and proposed several reforms, including changes to the ascription of legal parenthood.
Currently, the legal mother of a child, born through a surrogacy arrangement, will be the gestational mother i.e. the woman who gave birth to the baby. This legal definition applies regardless of the genetics of the child and surrogate. Therefore, the surrogate, as the child’s legal mother from birth, will have legal responsibility for a child which she did not want whereas the intended parents do not have any legal rights at birth. The provisions of the Human Fertilisation Embryology Act 2008 (HFEA 2008) also mean that a surrogate’s husband (if she has one) will be treated as the legal father of the child, unless they did not consent to the treatment. This presumption applies for same sex marriages and civil partnerships, whereby the spouse would become the second legal parent.
For the intended parents to become the child’s only legal parents, they must either adopt the child or apply for a parental order under HFEA 2008. A parental order is preferred over adoption as the process is less time consuming and burdensome but must be applied for within 6 months of the child’s birth. When a parental order is granted, the child’s birth is registered, and the original birth certificate can only be accessed when the child reaches adulthood.
The joint consultation by the Law Commission and Scottish Law Commission has proposed a new pathway to legal parenthood which takes a different approach to the current route of obtaining a parental order. This new pathway aims to create a route through which the intended parents become the legal parents of the child from birth. The Law Commissions propose that the new pathway should not involve an application to court, but follow a rigorous administrative process incorporating safeguards and a surrogacy agreement.
An assessment of the potential child’s welfare would also be carried out before conception takes place. Conception would then take place, and upon birth the intended parents would be recognised as the legal parents. The new pathway also allows for the right to object by the surrogate, so her rights will still be fully respected and protected under the new pathway. Finally, the new pathway will mean that the intended parents will have legal parental rights and responsibility for the child from the time of their birth, unlike at present.
The final report is expected to be published in 2021, so only time will tell whether these proposals will be adopted into law. Meanwhile, anomalies in legal parenthood will continue to exist.
Access to and details of the Surrogacy Consultation can be found through https://www.lawcom.gov.uk/project/surrogacy/