Domestically-focused proposals about surrogacy law in the UK are important, but can they work effectively without aligning with laws in other jurisdictions? This article examines what is being proposed, and the implications.

The following article examines recommended changes about surrogacy law in the UK. An important element in family law, this is clearly relevant to advisors and lawyers working with clients and we are pleased to share this commentary. The article comes from Michael Wells-Greco, senior lecturer and partner at law firm Charles Russell Speechlys. The editors are pleased to share these views, and invite responses. The usual disclaimers apply. To respond, email tom.burroughes@wealthbriefing.com

The Law Commissions of England and Wales and Scotland published a detailed and cautious report and a comprehensive draft Bill in March 2023, outlining recommendations to the UK government to reform the law on surrogacy. 

The draft legislation, the result of an extensive review, provides a new regulatory regime that offers more clarity, safeguarding and support – not just for the parents and surrogate, but for the children themselves. 

This is a positive first step for children, surrogates and intended parents trying to navigate UK rules that are almost 40 years old. While reform is needed and widely accepted by the legal community, some are asking whether domestic reform is enough. 

Surrogacy is a complex and emotionally charged issue, often involving parties from different countries, each with their own cultural, legal, and ethical frameworks. The absence of a universally accepted framework presents a set of unique challenges.

Do the proposed reforms go far enough?
Laws and regulations vary significantly worldwide; in some countries, surrogacy is entirely banned, while others have commercial surrogacy markets with little oversight. These disparities lead to instances of exploitation, ethical quandaries, and sometimes, complicated international legal disputes.

As part of the reforms, the law requiring a post-birth parental order will remain available for people who do not fall within the new pathway as well as for those undertaking surrogacy arrangements abroad. 

But clearly absent from the draft Bill is a general rule of recognition of legal parentage established abroad for surrogacy arrangements lawfully completed in a third state. This means that British people living abroad or those who have strong connections with – or wish to move to – the UK will continue to require advice to determine whether the legal parent-child relationship established abroad will be recognised in the UK and, if not, what redress can a court in the UK provide.

International cooperation is needed to prevent such issues, helping to ensure that any children born through surrogacy and surrogates have their rights protected. Children should not be left in legal limbo due to conflicting international laws. Ensuring that children have the right to know their origins, and that they are not commodified or trafficked, is an essential part of creating a fair system.

By fostering dialogue and understanding, nations can work together to establish minimum standards of practice, ensuring the rights and wellbeing of all parties involved – intended parents, surrogates, and, importantly, children – are protected.

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A global outlook
The UK is not alone in considering possible reform. The Council of Ministers of the Netherlands recently approved a Bill to introduce a framework on legal parentage following a surrogacy birth. The Bill is to be debated by the Lower and Upper Houses of Parliament of the Netherlands. Like the draft UK Bill, safeguards to protect the rights of women and the rights of surrogate born children are proposed. However, these are framed as conditions for legal parentage in the Netherlands and the proposed framework would apply to domestic and international surrogacy arrangements. 

These conditions include: judicial review of the surrogacy process abroad; counselling for all parties pre-conception; and information preservation for the children to promote openness and transparency.

This approach seeks to protect all parties to a surrogacy arrangement and the child irrespective of where the child is born. If the UK Parliament debates the UK Bill, a review of the proposed Dutch framework would be welcome.

In any jurisdiction, when considering reform, the rights of women and of children must be at the forefront. The risk of exploitation in (unregulated) arrangements is a concern for all countries. 

As drafted, the UK Bill is intentionally domestically focused. A cross-border framework would require multilateral treaty cooperation with other nations. Perhaps a hopeful sign is the upcoming work of the Working Group of The Hague Conference on Private International Law in the Netherlands. 

Surrogacy involves deep ethical and practical complexities. To navigate these, and to create a system that is fair, respectful, and protective of all involved, international cooperation is essential. By creating shared guidelines, and putting in place robust, universally recognised safeguards, we can harness the benefits of surrogacy while mitigating its risks. It's time for a global approach to this global issue.