Parenthood is an aspiration and joy for many of us – but it’s one that we can’t take for granted. 

For some, surrogacy – when a woman carries and gives birth to a baby for another person or couple – is the only option.

The number of people applying to the courts to be formally recognised as the parents of a child following a surrogacy arrangement has increased across the UK in recent years reflecting a welcome change in society’s views on the ‘traditional’ family. Jennifer Maciver, head of family law at law firm Gillespie Macandrew welcomes a review of the existing legal framework around surrogacy.

“It’s very much a live and current issue and we are pleased to see the Scottish Law Commission and Law Commission of England and Wales have been jointly appraising existing legislation and have published proposals for consultation.  The current law around surrogacy is outdated and doesn’t reflect modern medical advances or changes in social attitudes.  Surrogacy is a particularly sensitive and emotionally demanding process for everyone involved so we welcome anything which simplifies or modernises the legislation.   A draft report is anticipated, followed by draft legislation by 2021 but their proposals offer a clear indication about the recommended direction of travel,” she says.

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Parental orders

Currently, the surrogate, and her spouse – if she has one – are the legal parents of the child at birth and their names are noted on the birth certificate.  The intended parents must make an application to the court for a parental order to be recognised as the child’s parents, with the legal rights and responsibilities this entails.  This can take around six months to process which she points out can pose several potential problems.  The first is that while the intended parents are socially and psychologically the parents, that doesn’t match the legal position, which can cause identity problems.   On the flip side, the surrogate doesn’t normally view herself as the child’s mother, but the law does.  Secondly, if the child needs medical care during the first six months of their life the intended parents will likely not have any legal standing to take medical decisions about the young child in their care, which is not on any view a good situation for the child.

“At the moment there is a considerable gap between people’s expectations and the law and significant potential for misunderstandings.  This is not a positive environment in which to welcome a child and we are pleased to see this being tackled as part of the review,” says Maciver.

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She explains that the Law Commissions’ ‘new pathway’  will have several positive outcomes: it will allow intended parents to become the legal parents from birth in some cases; remove of the need for a genetic link between the intended parents and the child in some cases; establish a new regulator for surrogacy; create a register to allow those born of surrogacy arrangements to access information and for international surrogacy arrangements help those who have a child abroad to bring their child back to the UK with less red tape.

The new framework, she says will set out proactive measures including – introducing pre-conception safeguards that are built in before the baby is conceived to help to avoid problems later in the process.   

“The proposal is that before the child is conceived there must be a written agreement between the surrogate and the parent, an independent assessment of the child’s welfare, the intended parents and the surrogate are all bound to take independent legal advice so that they understand the process, they are all medically screened and criminal checks are carried out,” she explains.

The intended parents and the surrogate are also required to go to implications counselling to help establish the foundation for an appropriate and positive relationship.

Which all sounds like an onerous process – but it’s one which Maciver believes will actually significantly enhance the current situation. “It’s more proactive and sees the introduction of meaningful safeguards – which will hopefully reduce the problems that can sometimes arise after the birth of a child and provide clarity for those entering into a surrogacy arrangement exactly what’s expected of them.

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The overseas option

Owing to the restrictions on commercial surrogacy in the UK and the difficulty in finding willing surrogates some people choose to go to countries where commercial surrogacy is legally possible – which often leads to further complications when trying to bring the baby back to the UK.

Overseas situations, she says, account for approximately half of surrogacies and they will still have to apply for a parental order, which is also getting an overhaul.  For example, currently the intended parents have to apply for that within six months of the child being born, which is a relatively narrow window.  The proposal is remove that time limit.  They are also proposing changes to make it easier and quicker to get a passport or visa to bring the child to live with them in Scotland.   

Unlike other areas of family law in Scotland, , surrogacy is an area that has seen cultural attitudes change faster than legislation and Maciver believes that the Law Commissions’ proposals are welcome, though not perfect.

While commercial surrogacy is banned, reasonable payments are allowed, which leads to grey areas which the proposals don’t yet address, for example, what is reasonable and what strays into ‘payment’?

“The law in this instance is very difficult to apply,” says Maciver. If the payment is higher than reasonably anticipated what options does the court have? There has so far been no refusal of a parental order based on the level of payment but it’s probably the most contentious area in the consultation.  It’s one in which people hold strong opposing views and so the Law Commissions have canvassed opinion about how these limitations should be set and enforced.”

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Single parents

In the meantime, though she is encouraged by the fact that in January the law was changed following a challenge to the Human Rights  Act 1998 meaning that  single parents can now apply for a parental order. “This was the single most urgent issue: previously only married couples, civil partners, cohabitants or people in other enduring relationships could apply.”

And the future?  Maciver says that there are differing views about the best route forward – and of course the proposed changes are still at consultation stage. But she believes that the new pathway is long overdue and will have very positive effect, improving the way that surrogacy works and better protecting the interests of surrogates, intended parents and ultimately the children involved.

Which is a community whose numbers are fast increasing. 

Jennifer Maciver, is head of family law at law firm Gillespie Macandrew, who combine specialist, practical advice with a responsive, supportive and discrete service. 

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