The following article looks at proposed reforms to surrogacy law and how they are likely to apply.

The following article examines the growing area of surrogate births and how this is affected by the law, and examines potential changes. Given estate planning, succession and related issues, the relevance to the private client space is obvious. The article is from Sarah Hutchinson, partner at Farrer & Co, the law firm. The editors are pleased to share these views; the usual disclaimers apply. Email tom.burroughes@wealthbriefing.com

There are now four times more children born from surrogacy in this country than there were 10 years ago. However, there are serious issues with the current law, which has not developed at the same rate, and which causes many couples to seek surrogacy arrangements abroad. The Law Commission published a report in March 2023 recommending some key changes which will, if enacted, bring about much needed clarity and reassurance for parents and surrogates alike.
 
Who are the child’s legal parents?
A major consideration under the current law is that the surrogate and, if married, her spouse/civil partner are the child’s legal parents when he or she is born. The intended parents must then apply for a parental order or for adoption to become the child’s legal parents after the child is born. This process can take up to a year, during which time the child is living with the intended parents, but they are not the child’s legal parents.  
 
The Law Commission proposes a new pathway for UK surrogacy whereby if certain conditions are met (such as counselling, independent legal advice, and a regulated surrogacy agreement), the intended parents will be the legal parents from birth and will be named on the first birth certificate. The surrogate would have the right to withdraw her consent up until six weeks after birth. If the surrogate withdraws her consent during pregnancy, then the surrogate would be the legal mother at birth and the intended parents would have to apply for a parental order through the courts, who will have to determine the issue. 
 
In addition to empowering parents to make crucial decisions for the child during the first few months of life, enabling recognition of legal parenthood from birth would have important implications for the child’s rights; this may include, for example, the right to claim against a deceased intended parent’s legal estate if that intended parent were to die without a Will. Legal parenthood could also mean the difference between the child being treated as a member of the beneficial class of an existing family trust, or not.
 
When new trusts are created with the possibility of surrogacy in mind, the drafting can ensure that children born via surrogacy are included in the beneficial class. Uncertainty can arise in the context of existing family trusts, depending on the way in which the beneficial class is defined and whether there are any exclusions (such as illegitimate children). It will depend, in part, on the governing law of trust, as well as potentially the law of the relevant surrogacy jurisdiction and the jurisdiction where the child is habitually resident. Where there is any doubt, and of course subject to respecting any applicable exclusions, the simplest solution may be to rely on the trustees’ power (if available) either to add the child specifically by name or to add a new class of beneficiaries which specifically includes children born via surrogacy. 
 
Safeguarding and the regulation of surrogacy agreements
There is currently no scrutiny of surrogacy agreements in England until the child is born and a parental order is applied for. Similarly, there are currently no pre-conception safeguards in place in surrogacy arrangements, these only occur after birth and on the application by the intended parents for parental rights.
 
Under the new proposals, surrogacy agreements would be regulated and overseen by the non-profit Regulated Surrogacy Organisation. The recommendations also introduce pre-conception safeguards, as mentioned above, to protect the interests of all participants, which must be met before a surrogacy agreement is permitted under the new laws.
 
A new surrogacy register will also be created so that children born through surrogacy can trace their origins when they are older.
 

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Payments to surrogates
This is another particularly problematic area under the current law. There is currently no definition of what payments may be paid to a surrogate as “expenses reasonably incurred” and those that are not permitted. 
 
Although under the proposed reforms commercial surrogacy would still be prohibited, there would be greater clarity regarding which payments are permitted to a surrogate or for her benefit. These include insurance for the surrogate, costs of domestic support the surrogate normally undertakes, lost earnings and lost employment-related potential earnings, medical expenses, wellbeing and related costs, pregnancy-related items, travel, and occasional accommodation costs for purposes linked to the surrogacy arrangement, etc. An additional requirement will ensure that the intended parents meet the costs of life assurance and critical illness cover for the surrogate and the costs of meeting the screening and safeguarding requirements under the new recommendations.
 
The future
Surrogacy will continue to be a solution many look to on their road to parenthood, and these proposals would undoubtedly improve the legal framework. However, it is now in the hands of parliament with a busy legislative schedule and a general election not far away. Whether the proposals become reality remains to be seen.