Like most reading this article, this week’s news of the final draft bill being received was a huge occasion. Let’s face it, we’ve been waiting long enough. If you have a spare week, we’d urge you to read all the materials now available. Start with the Summary document and work your way up to the mind boggling Vol III Draft Bill.
For surrogates, intended parents, family lawyers and those working in the fertility sector, 29th March 2023 was an important day. What did the Bill cover, and where were we left disappointed? What was clear from the majority of experts we’ve spoken to is that this once in a generational change appears to be playing it a little bit safe. Below are some of the highlights which we wanted to spotlight and give additional clarity.
Work on the surrogacy project began in May 2018 and in June 2019. The Law Commission first published a Consultation Paper, inviting responses to their provisional proposals for law reform. The consultation period ran from 6 June to 11 October 2019. Our founders Michael and Wes were heavily involved in supporting the Law Commission (and the APPG Surrogacy Law Reform since 2016, via TwoDadsUK and My Surrogacy Journey) travelling around the UK, attending open debates and discussions on the paper. By the end of the consultation The Law Commission had received over 680 responses.
Regulated Surrogacy Organisations (RSO) – New
This is new introduction to the landscape of UK surrogacy. RSOs are essentially the new ‘gatekeeper’ to surrogacy in the UK. A huge responsibility, and a broad undertaking of compliance, and management of the new Regulated Surrogacy Statement. Which is completed pre conception and involves an assessment of the welfare of the child to be born through surrogacy. The RSO also will supply the data for the Surrogacy Register, another new edition to the bill. My Surrogacy Journey has always been working to be ‘regulation ready. So therefore, the new pathway works very similar to our own membership benefits, onboarding and compliance checks process. With tighter regulation will come additional headcount potentially, so we’re currently working through a revised structure of our admin and compliance team in readiness for the new legislation. In the new world RSOs will be audited by the recommended body, The Human Fertilisation and Embryology Authority (HFEA).
What is The Surrogacy Register?
This is a new addition to the model. It will store information about the IPs and the surrogate, for the surrogate born child. It relates to the new pathway and the Parental order route. Information within it is updated by the RSO if the new pathway and/or the Court if the PO route is opted for.
A new pathway to legal parenthood
A new pathway was expected, and it’s pretty much as most of us expected. The overwhelming positive here is the legal route to parenthood from birth. This new pathway sets out how IPs can qualify for this route. There are several stipulations and these are;
- The pathway must have an RSO carry out the preconception checks and sign the Regulated Surrogacy Statement, essentially adding the surrogacy agreement to the new pathway
- Legal Advice is received.
- Implications counselling is taken.
- Enhanced Disclosures (or Disclosure Scotland) are made for all parties (and those over 18 years old in the same household)
- The embryo transfer must take place in the UK.
- There is a genetic link to the child.
- Traditional or gestational surrogacy is permitted.
- Surrogates expenses are within the permitted types of payments, and a statutory declaration must be provided.
If the pathway is maintained then the IP(s) are then listed as the birth parents, and a parental order is not needed. They are then the legal parents.
There is still a period of time where a surrogate can withdraw her consent, which would mean she would then become the legal parent at birth, if done before the child was born. Intendeds parents in this case would then apply for a parental order to gain legal parental status instead of the surrogate. If consent is removed after the birth of the child, then the surrogate would need to apply for a parental order if she wanted legal parental status. The IP(s) would still become the legal parents at birth.
Payments to the Surrogate
For the first time there is now much greater clarity on what can be paid or rather the categories of payment, and more controversially – the frequency. These requirements are the same for the pathway and the parental order route to parenthood. The RSOs or the Courts (depending on the route taken) will ensure there hasn’t been any overpayment or breach of the Surrogacy Act 2023.
It has also been recommended that intended parents should be required to meet the costs of;
- Life Assurance and critical illness cover for the surrogate. Covering the period of the beginning of any fertility treatment and lasting for two years from the point of conception and;
- The costs of meeting the screening and safeguarding for the new pathway
Modest gifts are also allowed to the surrogate; something which feels little ambiguous.
Payments not permitted
The payments that are not permitted by law are prohibited and cannot be made to the surrogate or to other people on their behalf.
Future of Independent Surrogacy
It’s clear from the Draft Bill, that the preference for all British Domiciled IPs exploring surrogacy is for this to take place in the UK via an RSO. The new pathway couldn’t scream this any louder if it tried. I wouldn’t say the future is uncertain for independent surrogacy, because it’s clear people will meet/match in this way, however with the advertising ban not being lifted for independent surrogacy, (only for RSOs). Not even IPs and surrogates are allowed to advertise they need a surrogate, or are unmatched, as this will be a criminal offence.
One question I’d ask you to answer is; how important is legal parentage from birth worth to you? I’d argue most IPs would want the security and protection that at birth, the baby is legally theirs. And surrogates would also want this for their IPs. Certainly from the ones we’ve spoken to, all agree with this statement. If being a legal parent from birth isn’t a priority for you, (or you don’t meet the requirements) then you have access to the Parental Order option (similar to the option we use now). However you will still need to comply with all the compliance and pre conception checks. Which include, enhanced criminal records checks, health screening, legal advice, implications counselling and the post birth statutory declaration with regards to payments to the surrogate. The court will then decide if all has been met to grant a parental order. I also predict the process may take a little longer than the current model, given the additional checks, but this is purely speculation.
Independently matched with a ‘dash of RSO’?
We could also see independently matched teams partnering with an RSO to complete the preconception checks as mentioned above, to allow all parties access to the new pathway to legal parenthood. We expect RSO’s to develop new ‘lite’ membership options, to allow access for these IPs and surrogates – however this has to be as a non-profit method.
Employment Rights for IPs
The Final Draft Bill also recommends change to employment rights for those people needing time off for antenatal and fertility appointments, which is absolutely something welcomed and exciting to hear. An understanding in the workplace of better support around surrogacy is something My Surrogacy Journey® are working on with our partners at Fertility Matters at Work.
Sadly, not much changing on this front, much to the disappointment of everyone we’ve spoken to or interviewed. Those IPs travelling abroad are excluded from the new pathway to legal parenthood, and must therefore apply to the High Court for the Parental Order, to gain legal parentage. It was noted that there are recommendations for better immigration support, especially when it comes to reunited families much quicker, especially when waiting on a British Passport or travel document. The Law Commission confirmed on a select call we had with them and the other surrogacy organisations that although a passport can’t be applied for until the birth of a child, the file could be opened in readiness. To aid a swifter process. We’ll just have to see…
The Government have a period in time to respond and they reply to the recommendations, which has a time window of 12 months. We expect that Government is pro-reform, there is a growing member base in the APPG, so we’d like expect a fairly smooth transition into committee (where we continue to have a voice) and then into Parliament.
Comments from Dr Gilling-Smith
“As the Medical Director and HFEA Person Responsible of an IVF clinic which sees many intended parents (IPs) and surrogates (The Agora Clinic in Brighton), I am confident that the draft bill ticks most of the boxes I wanted to see ticked and is a significant improvement to surrogacy legislation and compliance in the UK which has been utterly behind the times for so long. This draft bill has been a long time coming, and quite rightly so as a great deal of consultation and discussion with all stakeholders was needed to put in place a robust pathway to parenthood through surrogacy in the UK, and more importantly one that could match the clarity and regulation already in place for so many other fertility treatment pathways to parenthood.”