Surrogacy legislation remains complex and unsatisfactory.

Abstract

The UK Surrogacy Agreement Act came into force in 1985, the same year as the first known UK surrogacy birth. Three decades later, the Surrogacy Agreement remains legally unenforceable in the UK. The Human Fertilisation and Embryology Act (HFEA) 2008 section 33 dictates that the surrogate is the legal mother until the court grants a parental order transferring parental rights to the intended parents. Parental order is granted only in limited conditions: the intended parents must domicile in the UK; be in a proven long-term relationship, partnership or marriage; one or more parent must be genetically related to the child; and most controversially, surrogates must be paid only ‘reasonable expenses’. Surrogacy laws struggle to keep pace with changing social attitudes, growing demand for surrogacy, and ultra-dynamic family structures. Within the past decade, the HFEA 2008 part 3 gave same sex and unmarried couples the same legal rights as married heterosexual couples in applying for parental orders. The legal definition of motherhood was successfully challenged in the Irish High Court and the intended mother's name was added to the birth certificate (R and Another v An TArd Charaitheoir and Ors). The recent Law Commission 13 Programme of Reform Public Consultation included Surrogacy. Issues reviewed included: (1) Single Parenting – currently the UK courts have no power to grant parental orders to single parents although there has been a recent High Court judgement ruling that was incompatible with article 14 of the European Convention (Re Z [A Child] [No 2] [2016] EWHC 1191 [Fam]); (2) The Birth Certificate – in the UK two parents are registered but they do not have to be the biological parents (Birth and Death Registration Act 1953). More than half a century since this act, the modern family structure has changed and, limiting registration to two parents may not reflect the actual parenting structure. Arguments have supported adding a third ‘parent’ if they were intimately involved in their creation (e.g. mitochondrial replacement). There are different rules of registration for parents in marriage or civil partnership, requiring re-registration if the parents marry later; (3) Parental Order restrictions – include that one or more parent must be genetically related to the child; (4) Surrogate Agreements – in the UK parental orders are only granted after birth, unlike the USA where the Uniform Parental Act 2002 allows states’ federal guidelines and legislation to transfer parental rights before delivery; (5) Maternal and Paternal Rights – the surrogate remains the legal mother with full responsibility until the parental order is granted. In overseas surrogacy the child may be born stateless, as the intended mother is not considered the ‘legal’ mother under either UK or overseas legislation. English law may not automatically recognise a foreign birth certificate (RE X and Y [Foreign Surrogacy]). This is curious as UK legislation dictates that the surrogate's husband or civil partner is the ‘legal’ father unless he does not consent. With the increase in surrogacy, the legal situation urgently needs clarification, with the paramount focus being the best interests of the child. None declared. Completed disclosure of interests form available to view online as supporting information. Please note: The publisher is not responsible for the content or functionality of any supporting information supplied by the authors. Any queries (other than missing content) should be directed to the corresponding author for the article.