APPG report brings us another step closer to urgently needed reform on the law and practice of surrogacy

On 26 April 2021 the APPG finally launched its long awaited “Report on the understandings of the law and practice of surrogacy” which adds considerable impetus to the Law Commission’s proposals on surrogacy reform in 2019. The proposals call for a reform of the existing laws, which are considered not fit for purpose in a modern society as they do not operate in the best interests of the children, surrogates or the intended parents.

The reform proposals identify Parental Orders as a key area for reform. The Human Fertilisation and Embryology Act 2008 sets out the rules on legal parenthood, defining the surrogate as the legal mother at birth (and her spouse or partner usually as the legal father or second legal parent). It also provides a mechanism (the ‘Parental Order’) where, subject to court approval upon the meeting of certain conditions, legal parenthood can be transferred from the original legal parent[s] to the intended parents, unless this is vetoed by the surrogate (for a limited period after birth). The report suggests that the parental order process can take some time (six and eight months were cited by meeting participants), even when started as soon as possible, and that some courts are not familiar with it, which adds to the time and stress felt by intended parents.

Post-birth determination of legal parenthood following surrogacy has inhibited or prevented surrogates and intended parents from entering into surrogacy arrangements, alternatively has driven intended parents overseas. In addition, the applications for Parental Orders have been subject to a variety of litigation. In particular, in 2016, the High Court declared in Z (A Child) (No 2) [2016] EWHC 1191 (Fam) that the requirement that only couples may apply for a Parental Order was incompatible with human rights laws.  This led the government to introduce a Remedial Order (passed December 2018) that amended the legislation enabling single applicants to obtain a Parental Order.

The APPG proposes that the new legislation contains steps towards assigning legal parenthood, such as welfare checks, screening and safeguards, and a pre-approval of arrangement, which could be taken prior to birth or conception, or at the very least parental responsibility be granted to intended parents upon birth. It is suggested that these changes would allow the intended parents to deal with issues arising after birth, such as the child’s treatment in the hospital. However, despite the support for pre-birth orders or at-birth parenthood, the report has not made a general recommendation that legal parenthood should be automatically granted, leaving it for the Parliament to debate which arrangement(s) would be in the best interests of children born into surrogacy arrangements.

The report sets out compelling and important evidence from a wide range of people with experience of surrogacy arrangements and in this respect serves as a very useful adjunct to the Law Commission report. Given the extent of stakeholder interest and the evolving case law, the Law Commission anticipates that the project will take until early 2022. It must also be noted that the reformed law on surrogacy is only intended to disincentivise overseas surrogacy, which will continue alongside domestic arrangement in order to accommodate the needs of all children born through surrogacy.

Samantha Broadfoot QC appeared for the Secretary of State in Z (A Child) (No 2) [2016] EWHC 1191 (Fam).

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