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Law Commission releases new proposals to overhaul surrogacy laws

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Today the Law Commission of England and Wales and the Scottish Law Commission have announced joint proposals for the Government to overhaul surrogacy laws.

The report highlights that a more progressive stance should be taken towards Surrogacy and maintains the protection of all parties involved.

The Law Commissions’ report includes draft legislation and outlines a new framework which seeks to provide protection for all parties involved, including circumstances where the Intended Parents would become parents from birth. At the moment, they have to wait a number of months at least to obtain a Parental Order but the reality of the Court backlog means that it can be many months before the Order is made.

“The new pathway” proposed by the report would have a route for surrogacy, where certain safeguarding checks will be undertaken from the outset, and the scrutiny of arrangements starts pre-conception. This proposal is the first of its kind in England and Wales and would also include the right to withdraw consent for the surrogate as well as including an array of safeguarding systems such as criminal records checks, independent legal advice, and counselling.

The report has identified the need for parties to have a clear route through surrogacy and has proposed the introduction of the surrogacy agreements which shall be overseen by non-profit Regulated Surrogacy Organisations.

There will also be a Surrogacy Register to allow children to “trace their origins when they are older”.

The reforms proposed will clarify what payments can be made to a Surrogate, which include “wellbeing” costs, as well as recouping lost earnings; however, payments such as living expenses are not permitted. The reforms want to “ensure that the surrogate is not left better or worse off through surrogacy, while protecting against the risk of exploitation.”

Commercial surrogacy remains prohibited and altruistic surrogacy is still the only method. The report acknowledges that many intended parents go abroad for surrogacy, and these reforms seek to clarify and simplify the steps for surrogacy in England, Wales, and Scotland, to encourage intended parents to engage in this process closer to home. If the intended parents still travel for surrogacy, then it is advisable to consider the legal and practical measures of the welfare of the child when bringing them back home.

For more information and advice around surrogacy law, speak to one of our solicitors today by contacting one of our offices or by sending us an enquiry.