Report on Building families through surrogacy: a new law Volume I: Core Report [2023] SLR 262 (March 2023)

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Law Commission


Law Commission of England and Wales

Law Commission No 411

Scottish Law Commission

Scottish Law Commission No 262

Building families through surrogacy: a new law

Volume I: Core Report (see also: Volume II: Full Report

Presented to Parliament and laid before the Scottish Parliament pursuant to section 3(2) of the Law Commissions Act 1965

Ordered by the House of Commons to be printed on 28 March 2023

HC 1236

SG/2023/76

© Crown copyright 2023

This publication is licensed under the terms of the Open Government Licence v3.0 except where otherwise stated. To view this licence, visit nationalarchives.gov.uk/doc/open-government-licence/version/3.

Where we have identified any third party copyright information you will need to obtain permission from the copyright holders concerned.

This publication is available at www.gov.uk/official-documents.

Any enquiries regarding this publication should be sent to us at Enquiries@lawcommission.gov.uk or info@scotlawcom.gov.uk

978-1-5286-3959-0

E02875841 03/23

Printed on paper containing 40% recycled fibre content minimum

Printed in the UK by the HH Associates Ltd. on behalf of the Controller of His Majesty's Stationery Office

The Law Commissions

The Law Commission and the Scottish Law Commission were set up by the Law Commissions Act 1965 for the purpose of promoting the reform of the law.

The Law Commissioners are:

The Right Honourable Lord Justice Green, Chair

Professor Sarah Green

Professor Nick Hopkins

Professor Penney Lewis

Nicholas Paines KC

The Chief Executives of the Law Commission are Stephanie Hack and Joanna Otterburn.

The Law Commission is located at 1st Floor, Tower, 52 Queen Anne's Gate, London SW1H 9AG.

The Scottish Law Commissioners are:

The Right Honourable Lady Paton, Chair

David Bartos

Professor Gillian Black

Kate Dowdalls KC

Professor Frankie McCarthy

The interim Chief Executive of the Scottish Law Commission is Charles Garland.

The Scottish Law Commission is located at 140 Causewayside, Edinburgh, EH9 1PR.

The terms of this report were agreed on 22 February 2023.

The text of this report is available on the Law Commissions’ websites at:

https://www.lawcom.gov.uk/project/surrogacy/

https://www.scotlawcom.gov.uk/law-reform/law-reform-projects/joint-projects/surrogacy/

Contents

GLOSSARY

About this Report

What is surrogacy?

Why we need to reform surrogacy law

Current law on surrogacy

National differences

The current picture

Our project

Our approach

Issues not covered in this Report

How the new pathway will work

Eligibility conditions

Screening and safeguarding and the Regulated Surrogacy Statement 2.30

The surrogate’s right to withdraw her consent

Parental responsibility/parental responsibilities and parental rights

Birth registration

The status of the surrogate’s spouse or civil partner

Why parental orders are still needed

Current requirements for parental orders

Changes we recommend to parental orders

Parental order procedure

REGULATOR, AND CRIMINAL OFFENCES

Record keeping

The form that Regulated Surrogacy Organisations must take

Page

1

15

15

15

16

20

22

22

23

24

24

25

25

26

29

35

38

40

43

45

45

46

47

51

53

53

55

The HFEA: the role of the regulator

4.18      55

Criminal offences                                                        4.30

CHAPTER 5: PAYMENTS IN RELATION TO SURROGACY             5.1

Our guiding principles on payments                                      5.7

The payments scheme                                             5.11

Enforcement                                                        5.39

CHAPTER 6: THE SURROGACY REGISTER                       6.1     70

Why the Surrogacy Register is needed

6.1

70

Information that will be held on the Surrogacy Register

6.5

71

How information will get onto the Surrogacy Register

6.12

72

Accessing the Surrogacy Register

6.16

72

Other ways to access information

6.30

74

CHAPTER 7: COMPATIBILITY WITH INTERNATIONAL LAW            7.1     76

Relevant international law                                                    7.2

Compatibility of the new pathway with international law                    7.18

Conclusion                                                            7.29

CHAPTER 8: CONCLUSION

8.1       82

Glossary

We use the following terms within this Report.

We have carefully considered what terminology is most appropriate in the context of this Report. We acknowledge that not all of the terms have universally accepted meanings, or are used the same way in all the literature. The definitions contained in this Glossary reflect how terms are used in this Report.

Term

Definition

Altruistic / non-commercial surrogacy

A surrogacy arrangement in which neither the woman who becomes the surrogate, nor any surrogacy agency involved, makes a profit, and the arrangement is not enforceable as a matter of contract law.

Artificial insemination

A procedure where sperm are directly introduced into the reproductive system of a woman by means of a syringe or other artificial device. This process can be completed at home, without the involvement of a fertility clinic, or may take place within a clinic.

Assisted conception

An umbrella term which covers conception that does not take place through sexual intercourse. Examples include artificial insemination and IVF.

Baby / child / foetus

All these terms may be used in everyday language to refer to the baby that the surrogate is carrying during her pregnancy.

We have generally preferred to use the term baby or child, even whilst still in utero, unless the context is medical and reference to a foetus is, therefore, more appropriate. For example, while we generally refer to the surrogate carrying a child during pregnancy, we have also referred to a woman’s ability to gestate a foetus to term.

British Infertility Counselling Association

(“BICA”)

A registered charity that represents professional infertility counsellors in the UK.

Biological parent/parentage

A term which can be used to refer to gestational and/or genetic parentage. In this Report, we prefer to specify whether we mean gestational or genetic parentage, as applicable, but we may quote from sources that use the term “biological.”

Blended family

A family where, typically, one or both of the parents have children from previous relationships who come together to form one family unit.

The Children and Family Court Advisory Support Service (“Cafcass”)

The public body in England which liaises with the court to provide a parental order reporter in surrogacy cases.

The Children and Family Court Advisory Support Service Cymru (“Cafcass Cymru”)

The public body in Wales which liaises with the court to provide a parental order reporter in surrogacy cases.

Commercial surrogacy

A surrogacy arrangement in which the woman who becomes the surrogate and any agency involved charge the intended parents a fee which includes an element of profit. A commercial arrangement in jurisdictions overseas may also be characterised by the existence of an enforceable surrogacy contract between the intended parents and the surrogate.

Domestic surrogacy arrangement

A surrogacy arrangement where the surrogate and intended parents are both based in the UK, and where all elements of the process, including pre-conception screening, (assisted) conception, pregnancy and birth take place in the UK. We use this term in contrast to an international surrogacy arrangement, where all or some of the elements of the process take place outside of the UK.

The European Convention on Human Rights (the “ECHR”)

The ECHR is an international convention in designed to protect human rights in Europe. Of most relevance to surrogacy are the rights contained in Articles 8 and 12 and 14 (a right to respect for an individual’s private and family life, the right to found a family, and protection from discrimination, respectively).

The UK is a contracting state to the ECHR, and has implemented its provisions in domestic law through the Human Rights Act 1998.

The European Court of Human Rights (the “ECtHR”)

An international court established by the ECHR, which decides on applications alleging that a contracting state has breached one or more of the rights guaranteed by the ECHR.

Embryo

An organism formed by the fertilisation of two gametes. In human pregnancy, from a medical perspective, an embryo is classified as a foetus from the 8th week after the fertilisation of the egg.1

Gamete

Human reproductive cells. Female gametes are called eggs and male gametes are called sperm.

Genetic parent or parentage

A term which refers to the one or both of the two persons whose gametes were used to conceive a child.

Gestational parent or parentage

A term which refers to the woman who gives birth to a child.

Gestational surrogacy

A surrogacy arrangement in which the surrogate is not genetically related to the child.

Gestational surrogacy involves the implantation of the surrogate with an embryo or embryos created in a process known as in-vitro fertilisation (“IVF”). These embryos may be formed of the intended mother’s egg and the intended father’s sperm, although donor sperm or a donor egg can be used.

We have preferred this term to that of “host” or “full” surrogacy which can also be used to describe this type of surrogacy arrangement.

The Human Fertilisation and Embryology Authority (the “HFEA”)

The statutory body that regulates and inspects all licensed fertility clinics in the UK. It also regulates human embryo research.

The Human Fertilisation and Embryology Authority’s Code of Practice (9th edition, revised October 2021) (the “Code of Practice”)

The Human Fertilisation and Embryology Authority publishes the Code of Practice to provide guidance to bodies such as licensed fertility clinics to help them comply with their duties under legislation. Guidance in the Code of Practice is also designed to serve as a useful reference for members of the public, including patients, donors and donor-conceived people.

Infertility

In the context of a heterosexual couple, the World Health Organisation defines infertility as a disease of the reproductive system defined by the failure to achieve a clinical pregnancy after 12 months or more of regular unprotected sexual intercourse.2 In the context of an individual, we use “infertility” to mean a person who is unable to gestate a foetus or unable to provide gametes for the creation of an embryo.

Intended parents

The persons who have initiated the surrogacy arrangement, and who intend to become the legal parents of a child born through surrogacy.

Individually, we refer to an intended parent who is male as an “intended father” and an intended parent who is female as an “intended mother”.

We prefer this term over “commissioning parent” (an alternative that is sometimes used) because of our view that the parties’ intentions are one of the defining features of a surrogacy arrangement.

In vitro fertilisation (“IVF”)

A medical procedure, used to overcome a range of fertility issues, by which an egg is fertilised with sperm outside the body, in a controlled environment at a fertility clinic, to create an embryo. The embryo is then implanted in a woman with a view to her becoming pregnant.

Legal parental status

A term that we use in this Report to describe a child’s legal parent, distinct from who has parental responsibility (in England and Wales) or parental responsibilities and parental rights (in Scotland), in respect of that child. We have preferred this term to “legal parenthood” as we think that this latter term can sometimes be used in the context of parental responsibility/PRRs and therefore risks confusion.

At common law the woman who gives birth to the child is their legal mother.3 In England and Wales the man whose sperm fertilised the egg is the legal father.4 There is a presumption that the mother’s husband or civil partner is the father, but this can be displaced.5 In Scotland he is the father if he was the husband or male civil partner of the mother between conception and birth, if he took steps to be registered as such in the Register of Births and Still-Births, or if a court grants a declarator of parentage in his favour.6

Where a woman gives birth to a child and her egg has not been used for conception, the HFEA 2008 provides that a woman who carries the child as a result of implantation of the egg and sperm (or embryo) has the legal status of a mother upon birth regardless of any genetic link to the child.7 Further special rules defining the legal parental status of a father or second female parent in such a situation exist also.8

Legal parenthood

A person or persons being recognised by law as being the parents of a child. We prefer the term legal parental status in this Report.

New pathway

A term that we use to describe our overall new regulated surrogacy scheme which, if followed and, if the surrogate does not exercise her right to withdraw her consent within a defined period of time, would enable the intended parents to become the child’s legal parents at birth.

Parentage

A term which focuses on the factual question of who shares a biological, principally genetic, connection with a child.

Parental order

An order that can be obtained from a court under sections 54 or 54A, HFEA 2008 which transfers legal parenthood from the surrogate (and her spouse or civil partner, where relevant) to the intended parents, and extinguishes the legal parenthood of the surrogate and her spouse or civil partner, if any.

Parental order process

A term that we use to describe the existing process of the intended parents obtaining a parental order.

Parental responsibility, and parental responsibilities and parental rights (“PRRs”)

In England and Wales, the legal concept of parental responsibility means all the rights, duties, powers, responsibilities and authority which by law a parent of a child has in relation to the child and the child’s property, as set out in section 3(1) of the Children Act 1989.

In Scotland, the legal concept of parental responsibilities and parental rights (“PRRs”) means all the obligations that parents, and those acting in place of parents, have towards their children and the powers they have to fulfil these obligations, as set out in part 1 of the Children (Scotland) Act 1995. Section 1(1) of that Act defines parental responsibility as the responsibility:

  • a)    to safeguard and promote the child’s health, development and welfare;

  • b)    to provide, in a manner appropriate to the stage of development of the child —

  • (i)      direction;

  • (ii)     guidance, to the child;

  • c)    if the child is not living with the parent, to maintain personal relations and direct contact with the child on a regular basis; and

  • d)    to act as the child’s legal representative.

Section 2(1) defines parental rights as the right:

  • (a)    to have the child living with him or otherwise to regulate the child’s residence;

  • (b)    to control, direct or guide, in a manner appropriate to the stage of development of the child, the child’s upbringing;

  • (c)    if the child is not living with him, to maintain personal relations and direct contact with the child on a regular basis; and

  • (d)    to act as the child’s legal representative.

The concepts of PRRs include things such as bringing up the child, having contact with the child, consenting to the child’s medical treatment and naming the child.

The legal parents of a child usually have parental responsibility/PRRs by virtue of that status, but parental responsibility/PRRs can also be conferred on people who are not the legal parents.

Pre-conception child welfare assessment

An assessment of the welfare of any child who might be born as a result of a course of action, such as a surrogacy agreement proceeding on the new pathway, or in relation to existing assisted reproduction procedures carried out at a licenced clinic.

Regulated Surrogacy Organisation (“RSO”)

Organisations created by the draft Bill which are licensed by the HFEA in order to be able to decide whether a surrogacy can proceed on the new pathway and to supervise those agreements.

Regulated Surrogacy Statement

A document signed by the surrogate, the intended parents and the RSO stating their intention or approval that the intended parents will be the parents at birth of any child born from the surrogacy agreement, and that the required statutory checks have been carried out. This document is mandatory on the new pathway.

Sexually transmitted infection (“STI”)

An infection which is passed from one person to another through sexual contact. Some STIs can also be transmitted in other ways, such as during pregnancy, childbirth, or through infected blood or blood products.

Social and / or psychological parent or parentage

A term which refers to the relationship which develops through a person acting in a way that we would associate with a parent, such as providing for a child’s needs.

Surrogacy Register

A register of surrogacy agreements created by the draft Bill, which holds information on the intended parents, surrogate, gamete donors, any fertility clinic used, and the surrogate-born child. It is maintained by the HFEA.

Surrogacy / a surrogacy arrangement

The practice of a woman agreeing to become pregnant, and deliver a baby with the intention of handing him or her over shortly after birth to the intended parents, who will raise the child.

Surrogacy agreement

An agreement between the surrogate and the intended parents regarding their intention to enter into a surrogacy arrangement.

Surrogacy team

Collectively, the surrogate and the intended parents who are entering, or considering entering into, a surrogacy agreement with each other

Surrogate

The woman who carries and gives birth to the child in a surrogacy arrangement, with the intention of handing him or her over to the intended parents shortly after birth, and transferring legal parental status to them.

From our discussions with those involved in surrogacy, we understand that surrogates themselves do not, generally, like to be referred to as the mother of the child, and so we have avoided the term “surrogate mother”.

Traditional surrogacy

When the surrogate is genetically related to the child she carries because her own egg is used to conceive the child. A traditional surrogacy arrangement typically results from the artificial insemination of a surrogate with the intended father’s sperm.

We have preferred this term to that of “straight” or “partial” surrogacy which can also be used to describe this arrangement.

ABBREVIATIONS OF LEGISLATION

Throughout this Report, we have abbreviated a small number of pieces of legislation which we refer to frequently. These abbreviations are set out in the table below:

Full name of legislation

Abbreviation

The Human Fertilisation and Embryology Act 1990 / 2008

The HFEA 1990 / HFEA 2008

The Surrogacy Arrangements Act 1985

The SAA 1985

The Adoption and Children Act 2002 / The Adoption and Children (Scotland) Act 2007

The ACA 2002 / AC(S)A 2007

The Human Fertilisation and Embryology (Parental Order) Regulations 20189

The 2018 Regulations

LIST OF COMMON ABBREVIATIONS

Other abbreviations frequently used in this report, including those used for consultees, are set out in the table below:

Abbreviation

Full name

BICA

British Infertility Counselling Association

OUR RECOMMENDATIONS FOR A NEW LAW ON SURROGACY

Society’s understanding of family and parenthood has changed considerably since the laws which currently govern surrogacy were passed over thirty years ago. Those laws do not work in the best interests of the child, or to support any of the people involved in surrogacy arrangements.

Although surrogacy has always been legal in the UK, at the time the current laws were passed, surrogacy was, at best, tolerated. Our review has examined the problems with the current law in a context in which the UK Government supports the use of surrogacy as a means of building a family.

The current law, which makes the surrogate the legal parent at birth, does not reflect the intentions of surrogates or intended parents. The law creates a degree of uncertainty and stress for the parties, which is not in the best interests of the child, in the period from the birth of the child to the recognition of the intended parents as the legal parents through the grant of a parental order. It can typically be six months to a year after the birth of the child before a parental order is made.

We recommend the introduction of a new pathway for surrogacy which will enable intended parents to be the legal parents at birth. It will involve screening and safeguarding checks before conception, allowing meaningful scrutiny at an early stage by a Regulated Surrogacy Organisation, rather than the current law which only involves scrutiny by the court after the child is born.

Our reforms respect the autonomy of the surrogate - if she withdraws her consent, the courts will make the final decision on parental status. Our reforms also keep the existing need for a genetic link between at least one of the intended parents and the child, so that “double donation” is not permitted.

Because the current law does not provide for the intended parents to be recognised as legal parents at birth, many enter into surrogacy arrangements abroad, a practice which raises particular concerns about the risk of exploitation of women. Our recommended reforms reduce that risk by putting in place a framework which will encourage intended parents to enter into a surrogacy agreement here rather than overseas.

We also recommend that for all surrogacy agreements, intended parents have the legal right - called parental responsibility in England and Wales, and parental responsibilities and parental rights in Scotland - to make decisions for the child they are caring for, for example about their medical care. This will mean that the surrogate is not required to make decisions for a child when she does not view herself as the parent and does not want to be responsible for those decisions.

The current law on the payments that intended parents can make to surrogates is unclear. We recommend changes which will set out clearly the payments which intended parents are permitted to make. Importantly, we

recommend that payments should be made to reimburse the surrogate for costs she incurs arising from the surrogate pregnancy: but payments for carrying the child and living expenses are prohibited, to protect against women being pressured or coerced into becoming a surrogate for financial gain.

In some surrogacy agreements a parental order application will continue to need to be made after the birth of the child in order for the intended parents to be recognised as the child’s legal parents. We make recommendations to ensure that the best interests of the child is the paramount consideration in those cases. In particular, we recommend that the child’s welfare should be placed at the heart of parental orders, by giving the court discretion to dispense with the surrogate’s consent where the welfare of the child requires it.

Finally, we recommend the creation of a Surrogacy Register, which will enable surrogate-born people to access information about their origins. This may have practical value in helping them to understand their genetic and gestational heritage for health reasons, and positively contribute to the quality of family relationships.

Collectively, our recommendations ensure that surrogacy continues to operate in the UK on an altruistic, rather than a commercial basis. Regulated Surrogacy Organisations will be required to act on a non-profit-making basis, and surrogacy agreements will not be enforceable. A woman who becomes a surrogate should be no better or worse off financially from doing so.

Taken together, our recommendations for a reformed surrogacy law respect the intentions of all parties, safeguard against exploitation, and place the best interests of the child at their heart.

ABOUT THIS REPORT

WHAT IS SURROGACY?

WHY WE NEED TO REFORM SURROGACY LAW

Problems with the current law

Our reforms

CURRENT LAW ON SURROGACY

Legal parental status and parental responsibility

the making of the order; and

(“PRRs”). Parental responsibility/PRRs describe the set of responsibilities, rights, duties, and powers a person has in relation to a child. Currently, intended parents do not hold parental responsibility/PRRs for the child at birth. That means that even though the intended parents are caring for the child from birth they cannot make decisions about the child, such as about medical care. Those decisions must be made by the surrogate.

Access to information

Criminal offences

NATIONAL DIFFERENCES

THE CURRENT PICTURE

OUR PROJECT

OUR APPROACH

ISSUES NOT COVERED IN THIS REPORT

HOW THE NEW PATHWAY WILL WORK

A new pathway surrogacy story - Rahul, Steve, Emma, and Olivia

ELIGIBILITY CONDITIONS

Requirements of the eligibility conditions

The assisted reproduction procedure by which the child is conceived must also take place in the UK. These conditions mean that the new pathway is not open to international surrogacies, because of the potential for exploitation in agreements which happen outside the reach of domestic law and Government bodies.

Effect of eligibility conditions

Changes to the proposals we consulted on

Suggestions we did not adopt

Rahul, Steve, Emma, and Olivia’s story - eligibility

SCREENING AND SAFEGUARDING AND THE REGULATED SURROGACY STATEMENT

The screening and safeguarding checks

Health screening

Implications counselling

Legal advice

Criminal records checks

Pre-conception welfare of the child assessment

Rahul, Steve, Emma, and Olivia’s story - screening and safeguarding

Regulated Surrogacy Statements

Effect of screening and safeguarding checks

Changes to the proposals we consulted on

Suggestions we did not adopt

Rahul, Steve, Emma, and Olivia’s story - the Regulated Surrogacy Statement

THE SURROGATE’S RIGHT TO WITHDRAW HER CONSENT

For these reasons, we have decided instead to use the term “withdraw her consent”. This also reflects the fact that the surrogacy agreement is based on her ongoing consent: if she withdraws that consent, then the surrogacy agreement exits the new pathway.

Requirements for the right to withdraw consent

Effect of withdrawing consent

Changes to the proposals we consulted on

England and Wales, and 14 days in Scotland (because the period of birth registration is six weeks and three weeks respectively). Consultees felt that these periods were too short, and were also concerned at having different periods north and south of the border. We now recommend that the period to withdraw consent should not be linked to birth registration and should be the same in both jurisdictions. Thus, the surrogate can withdraw consent within six weeks of the child’s birth. In the Consultation Paper we had envisaged the right to withdraw starting at birth, but we have now extended it back to conception.

Suggestions we did not adopt

Rahul, Steve, Emma, and Olivia’s story - during the pregnancy

PARENTAL RESPONSIBILITY/PARENTAL RESPONSIBILITIES AND PARENTAL RIGHTS

The intended parents’ parental responsibility/PRRs

The surrogate’s parental responsibility/PRRs

Rahul, Steve, Emma, and Olivia’s story - following the birth

BIRTH REGISTRATION

Preferred model of birth registration

Alternative model of birth registration

2.100 Table 1 below sets out the features of the two approaches.

Table 1: Preferred and alternative models of birth registration

Preferred model

Alternative model

Who is registered on the birth certificate/ extract from the parental order register?

The intended parents

The surrogate

Who are the legal parents at birth, if the surrogate has not withdrawn consent?

The intended parents

The intended parents

How are they registered?

As “parents”

As the “mother”

Who can act as an informant for the registration?

The surrogate, the intended parents, or others who can act as informants under current law

The surrogate, the intended parents, or others who can act as informants under current law

What evidence needs to be provided?

Regulated Surrogacy Statement, and (if the intended parents or third party are registering) a declaration by the intended parents that the surrogate had not withdrawn her consent before birth

Regulated Surrogacy Statement, and (if the intended parents or third party are registering) a declaration by the intended parents that the surrogate had not withdrawn her consent before birth

What is the outcome?

Intended parents are registered on the birth certificate, which is marked as being as a result of surrogacy

Six weeks after the birth, a parental order certificate/extract from the Parental Order Register showing the intended parents as parents is automatically issued

Advantages

Respects the intentions of the surrogate and intended parents; best records the legal parents of the child; meets the child’s need for an accurate birth certificate

Compatible with UK Government policy on the coherence of the birth register

Rahul, Steve, Emma, and Olivia’s story - registering the birth

2.101 In this Report, we present two different options for reform when it comes to registering the birth. Under our preferred policy, Steve and Rahul will be able to register Olivia’s birth themselves, with their names on her birth certificate as her parents.

2.102 Our alternative policy reflects the UK Government position in recent legal cases. Under that policy, Olivia’s birth will be registered in Emma’s name, but if Emma does not withdraw her consent by the end of the six-week period following birth, a parental order certificate will be automatically issued showing Rahul and Steve as Olivia’s parents.

THE STATUS OF THE SURROGATE’S SPOUSE OR CIVIL PARTNER

2.103 We recommend a change from the current law, so that the surrogate’s spouse or civil partner, if she has one, will no longer be the legal father or second parent of a child born as a result of a surrogacy agreement. This will apply to surrogacy agreements, whether on the new pathway or where a parental order is required. It will only apply where the surrogate and intended parents meet the eligibility conditions on age, to ensure that no legal effect is given to purported surrogacy agreements where any party is under the required age.

2.104 Under the current law, the surrogate’s spouse or civil partner will be the child’s legal parent, unless they do not consent to the agreement. Currently, the spouse or civil partner also has to give consent in parental order cases. In our view, it respects the surrogate’s autonomy for her alone to make the decision as to whether to carry a child for the intended parents and for legal parental status to apply only to her. This change attracted strong support during our consultation, including a petition signed by 64 surrogates, as well as support from some of those who disagreed with surrogacy in principle.

REFERENCES TO THE FULL REPORT

WHY PARENTAL ORDERS ARE STILL NEEDED

Abena, Shaun, Helena and Jack’s story - parental orders

CURRENT REQUIREMENTS FOR PARENTAL ORDERS

CHANGES WE RECOMMEND TO PARENTAL ORDERS

The time limit for a parental order

The power to dispense with the surrogate’s consent

Abena, Shaun, Helena and Jack’s story - the parental order application

The court’s decision

Parental responsibility/parental responsibilities and parental rights for intended parents

Abena, Shaun, Helena and Jack’s story - PRRs

Who can apply for a parental order

PARENTAL ORDER PROCEDURE

REFERENCES TO THE FULL REPORT

Chapter 4: Regulated Surrogacy Organisations, the regulator, and criminal offences

RECORD KEEPING

Rahul, Steve, Emma, and Olivia’s story - 12 weeks after the birth

THE FORM THAT REGULATED SURROGACY ORGANISATIONS MUST TAKE

THE HFEA: THE ROLE OF THE REGULATOR

The licensing regime

A surrogacy Code of Practice

Changes to the proposals we consulted on

Suggestions we did not adopt

CRIMINAL OFFENCES

Surrogacy matching services

Charging for negotiation and advising on surrogacy agreements

Advertising of surrogacy agreements

Changes to the proposals we consulted on

Suggestions we did not adopt

REFERENCES TO THE FULL REPORT

The new pathway: Rahul, Steve, Emma and Olivia’s story

OUR GUIDING PRINCIPLES ON PAYMENTS

THE PAYMENTS SCHEME

Payments intended parents will be permitted to make

Recuperative holiday and gifts

Payments which intended parents must offer to make

Payments which will be prohibited

The amount of payments

The new pathway: Rahul, Steve, Emma, and Olivia’s story - payments to the surrogate

Parental orders: Abena, Shaun, Helena and Jack’s story - payments to the surrogate

ENFORCEMENT

Regulatory enforcement

Civil penalties

Advantages and disadvantages of civil penalties

Recovery of payments by the surrogate

REFERENCES TO THE FULL REPORT

WHY THE SURROGACY REGISTER IS NEEDED

INFORMATION THAT WILL BE HELD ON THE SURROGACY REGISTER

HOW INFORMATION WILL GET ONTO THE SURROGACY REGISTER

ACCESSING THE SURROGACY REGISTER

Age of access

The new pathway: Rahul, Steve, Emma and Olivia’s story - accessing information

She can access non-identifying information when she is 16, or at an earlier age if she is Gillick competent.

Parental orders: Abena, Shaun, Helena and Jack’s story - accessing information

OTHER WAYS TO ACCESS INFORMATION

Parental order court files

Birth certificates

REFERENCES TO THE FULL REPORT

RELEVANT INTERNATIONAL LAW

The UNCRC and the Optional Protocol

The UN Special Rapporteur’s reports and the Verona Principles

...the views of the UN Committee on the Rights of the Child are “authoritative guidance” on the [UNCRC] ... . a General Comment is no more than guidance, which is not binding even on the international plane, so that it may “influence” but never “drive” a conclusion that the [UNCRC] has been breached.35

Rapporteur’s reports and the Verona Principles, because they are drafted by the UN Committee which was set up by the UNCRC to monitor how states implement the convention.

Other instruments

COMPATIBILITY OF THE NEW PATHWAY WITH INTERNATIONAL LAW

The UNCRC

The Optional Protocol and the Special Rapporteur’s reports

The Verona Principles

The Convention on the Elimination of All Forms of Discrimination against Women

CONCLUSION

REFERENCES TO THE FULL REPORT

1     https://www.nhs.uk/conditions/pregnancy-and-baby/8-weeks-pregnant/ (last visited 23 March 2023).

2    The International Committee for Monitoring Assisted Reproductive Technology and the World Health Organisation, Revised Glossary on ART Terminology (2009).

3     See, for example, The Ampthill Peerage [1977] AC 542, 577 and A B Wilkinson and K McK Norrie, The Law relating to Parent and Child in Scotland (3rd ed 2013) paras 3.04 to 3.05.

4     Clarke, Hall & Morrison on Children (Issue 102, May 2019), div 1, para 6

5     Family Law Reform Act 1969 s 23(1).

6        Law Reform (Parent and Child) (Scotland) Act 1986, s 5.

7       HFEA 1990, s 27; HFEA 2008, ss 33 and 48.

8     See HFEA 2008, ss 48 and 35 to 47.

9     Report of the Committee of Inquiry into Human Fertilisation and Embryology (1984) Cmnd 9314.

10     Surrogacy: Review for Health Ministers of Current Arrangements for Payments and Regulation (October 1998) Cm 4068.

11     XX v Whittington Hospital NHS Trust [2018] EWCA Civ 2832, [2019] All ER (D) 30 (Jan) at [101].

12     Department of Health and Social Care, The surrogacy pathway: surrogacy and the legal process for intended parents and surrogates in England and Wales (February 2018) p 4.

13     The Human Fertilisation and Embryology Act 2008 (Remedial) Order 2018 (SI 2018 No 1413).

14     Ministry of Justice, Family Court Statistics Quarterly - Family Court Tables January to March 2022 (June 2022) Table 4: Number of orders and children involved in Public and Private law (Children Act) applications made in the Family courts in England and Wales, by type of order, annually 2011-2021 and quarterly Q1 2021 - Q1 2022. Accessible at https://www.gov.uk/government/statistics/family-court-statistics-quarterly-january-to-march-2022 (last visited 23 March 2023).

15     NRS’ Vital Events Statistics 1999-2020, Table 2.03: Adoptions by type of adoption and by type of adopter(s). Accessible at https://www.nrscotland.gov.uk/statistics-and-data/statistics/statistics-by-theme/vital-events/general-publications/vital-events-reference-tables (last visited 23 March 2023).

16     Ministry of Justice, Family Court Statistics Quarterly - Family Court Tables January to March 2022 (June 2022) Table 4: Number of orders and children involved in Public and Private law (Children Act) applications made in the Family courts in England and Wales, by type of order, annually 2011 - 2021 and quarterly Q1 2021 - Q1 2022. Accessible at https://www.gov.uk/government/statistics/family-court-statistics-quarterly-january-to-march-2022 (last visited 23 March 2023); National Records of Scotland, Vital Events Reference Tables 2021 (Section 2, Table 2.02), accessible at: https://www.nrscotland.gov.uk/statistics-and-data/statistics/statistics-by-theme/vital-events/general-publications/vital-events-reference-tables/2021/list-of-data-tables (last visited 23 March 2023).

17     Building Families through Surrogacy: A New Law (2019) Law Commission Consultation Paper No 244; Scottish Law Commission Discussion Paper No 167 (hereafter, “Consultation Paper”). )

18     Department of Health and Social Care, The surrogacy pathway: surrogacy and the legal process for intended parents and surrogates in England and Wales (February 2018) p 4.

19     Re F (Children) (Thai Surrogacy: Enduring Family Relationship) [2016] EWHC 1594 (Fam), [2016] 4 WLR 126; Re N (A Child) [2019] EWFC 21, [2019] 3 WLR 317; Re A (A Child) (Surrogacy: s. 54 Criteria) [2020] EWHC 1426 (Fam), [2020] 6 WLUK 312.

20     A and B (No 2 - Parental Order) [2015] EWHC 2080 (Fam), [2015] Fam Law 1192 at [72]; Re X (A Child) (Surrogacy: Time Limit) [2014] EWHC 3135 (Fam), [2015] Fam 186.

21     S v L [2013] SC (UKSC) 20, [2012] UKSC 30, [32] to[35] and [43]; Re P (Placement Orders: Parental Consent) [2008] EWCA Civ 535, [2008] 2 FLR 625.

22     To a court, if the intended parents sought to appeal the penalty.

23     For a summary of these findings and list of empirical studies relating to donor-conceived and surrogate families, see S Golombok, We Are Family (Scribe 2022), pp 260 to264; 274 to280.

24     K Wade, K Horsey, and Z Mahmoud, “Children’s Voices in Surrogacy Law: Phase One Preliminary Report” (2023).

25     E Heard and R A Martienssen, “Transgenerational Epigenetic Inheritance: Myths and Mechanisms” (2014) 157 Cell 95; I Cowell, “Epigenetics - it’s not just genes that make us” British Society for Cell Biology.

Accessible at https://bscb.org/learning-resources/softcell-e-learning/epigenetics-its-not-just-genes-that-make-us/ (last visited 23 March 2023).

26     The UNCRC does not define the term “parent”, so “parent” could be interpreted as covering the surrogate or intended parents.

27     Child Identity Protection have recently published their signature report, which provides further detail on children’s rights to identity: C. Baglietto, L. Bordier, M. Dambach, and C. Jeannin, Preserving “family relations”: an essential feature of the child’s right to identity (2022) Accessible at https://child-identity.org/images/files/CHIP-Preserving-Family-Relations-EN.pdf (last visited 23 March 2023).

28     The HFEA Register was set up in 1991. A separate voluntary Donor Conceived Register helps to connect donor-conceived people who were conceived before 1 August 1991 with their donor and siblings.

29     Gillick v West Norfolk and Wisbech AHA [1985] UKHL 7.

30     Neulinger v Switzerland (2010) 54 EHRR 1087 (App No 41615/07) at [131] and [132].

31     Rights of Children and Young Persons (Wales) Measure 2011, s 1. Ministers are to have due regard to Articles 1 to 7 of the optional protocol on the involvement of children in armed conflict, except Article 6(2), and Articles 1 to 10 of the optional protocol on the sale of children, child prostitution and child pornography.

32     Attorney General’s Reference, United Nations Convention on the Rights of the Child (Incorporation) (Scotland) Bill [2021] UKSC 42, [2021] 1 WLR 5106

33     M de Boer-Buquicchio, Report of the Special Rapporteur on the sale and sexual exploitation of children, including child prostitution, child pornography and other child sexual abuse material, 15 January 2018, A/HRC/37/60; and M de Boer-Buquicchio, Report of the Special Rapporteur on the sale and sexual exploitation of children, including child prostitution, child pornography and other child sexual abuse material, 15 July 2019, A/74/162.

34     International Social Service, Principles for the protection of the rights of the child born through surrogacy (Verona Principles) (2021).

35     McConnell v Registrar General [2020] EWCA Civ 559, [2021] Fam 77 at [85].

36     International Social Service, Verona Principles (February 2021), Statement of Support by UN Committee on the Rights of the Child, p 3.

37     The Convention of 19 October 1996 on Jurisdiction, Applicable Law, Recognition, Enforcement and Cooperation in Respect of Parental Responsibility and Measures for the Protection of Children.


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