The Summary of Report – Building Families Through Surrogacy

Reading Time: 4 minutes

On the 29th March 2023, the Law Commission and the Scottish Law Commission revealed their Summary of Report. A hugely anticipated piece of work that involved a period of consultation in 2019 with over 680 responses.

So what does the report cover?

For this article let’s look at four key areas, Eligibility, The Regulated Surrogacy Statement, Safeguards for the new pathway and the New Pathway to Legal Parenthood. Our special newsletter also has some key elements listed too, such as expenses.

The surrogate must be at least 21 years old.

The intended parents must be at least 18 years old. This is the minimum age for obtaining a parental order under the current law.

At least one of the intended parents must have a genetic link to the child.

Where there are two intended parents, they must be married, in a civil partnership, or living as partners in an enduring family relationship.

At least one of the intended parents, and the surrogate, must meet a test of connection with the UK (domicile or habitual residence) at the time their surrogacy agreement is admitted on to the new pathway, and when the child is born.

The Summary Report recommended that the essential elements of a surrogacy agreement on the new pathway should be set out on an official form, the Regulated Surrogacy Statement, and be signed by the surrogate, the intended parents and the Regulated Surrogacy Organisation.

In the report the Law Commission make recommendations about the details that should be included in the Regulated Surrogacy Statement. These are;

• A statement that the intended parents will be the legal parents at birth, and that the surrogate will not be the legal parent of the child born, subject to her withdrawing her consent to the surrogacy agreement before the birth;
• Confirmation that a welfare of the child assessment has been completed to the satisfaction of the RSO;
• Confirmation that the parties have fulfilled the screening requirements;
• A statement by the intended parents and the surrogate that the child born of the surrogacy agreement will have their home with the intended parents;
• A description of the permitted payments to be made by the intended parents to the surrogate (although not a breakdown of all agreed expenses);
• Identifying details of those involved in the surrogacy agreement: the intended parents and the surrogate, the Regulated Surrogacy Organisation and (if any) the clinic;
• Details of whose genetic material is being used in conception:
• This will include identity in the case of the surrogate, intended parents, and known donors;
• In the case of identity-release gamete donors (those donors who are anonymous to the recipients of their gametes, but whose identity can later be released to a child born of those gametes once he or she reaches the relevant age), details of how to access information regarding the donor through the HFEA Register of gamete donors; and
• Non identifying information regarding the intended parents, surrogate and any known donors. This information could include a physical description of the parties, their marital status, or ethnic group.

In the Report, it details the requirements the Law Commission recommend must be met for a surrogacy agreement to enter into the new pathway and, therefore, for the intended parents to become the legal parents at birth. These are:

• an agreement between the surrogate and the intended parents
• a pre-conception assessment of the welfare of the child to be born of the surrogacy agreement
• independent legal advice about entering into the surrogacy agreement for the intended parents and the surrogate
• implications counselling to be undertaken by the intended parents and the surrogate
• medical screening of the surrogate and the intended parents
• enhanced criminal record checks to be carried out on the surrogate and her spouse, civil partner or partner (if any), the intended parents, and any adult over the age of 18 who lives with the intended parents
• agreement of a Regulated Surrogacy Organisation to admit the surrogacy agreement onto the new pathway.

The New Pathway to Legal Parenthood

Withdrawing consent in a new pathway surrogacy agreement

While the pre-conception screening and safeguarding checks should mean that surrogacy agreements rarely break down, as a further safeguard, it is recommended that the surrogate has the right to withdraw her consent to the surrogacy agreement, from the point of conception until six weeks after the birth of the child.

Only the surrogate has the right to withdraw her consent. After conception on the new pathway the intended parents cannot change their minds – just like parents who conceive outside surrogacy cannot walk away from their legal responsibilities; see below table

Surrogate withdraws consent after treatment leading to conception but before birth	Surrogate withdraws consent within six weeks of the birth
Surrogate is the legal parent at birth.	Intended parents are legal parents at birth.
One of the intended parents may also be a legal parent through operation of the current law.	Surrogate is not the legal parent.
Intended parents must apply for a parental order if they wish to gain legal parental status instead of the surrogate	Surrogate must apply for a parental order if she wishes to gain legal parental status instead of the intended parents.