The Surrogacy Arrangements Act 1985 (SAA), as amended by the Human Fertilization and Embryology Act 1990, governs surrogacy laws in UK. Moreover, legal parentage rules that are awkwardly applied and unenforceable contracts are a dangerous combination in this legislation. This has received harsh criticism from many commentators as well as the courts, whose rulings show that the current legal system is primarily distinguished by the absence of any cohesive regulatory framework.
Besides, over the past ten years, there have been numerous and increasingly common legal anomalies raised in court cases, leading academics as well as official from uk surrogacy agency have increasingly called for reform. The Law Commission received over 1,300 submissions from interested parties in March 2017. This made it clear that surrogates’ and commissioning parents’ voices needed to be heard, but the Law Commission’s surrogacy report, which contains reform suggestions, isn’t due out until 2021.
What is the big deal?
The competing interests of the commissioning parents, the surrogate mother, and the child born as a result of surrogacy in UK are not fairly balanced under the current surrogacy laws in UK and Wales. In particular, the law gives the surrogate mother (and possibly her spouse or partner) an excessive amount of veto power; this is particularly important in situations where the surrogate is not genetically related to the child, as it conflicts with the long-standing presumption that it is in the best interests of children to be raised by their natural family.
In contrast, the law gives absolute precedence to gestational motherhood over both genetic motherhood and paternal affiliation, which is insufficient recognition of the commissioning parents’ right to respect for their family life as stated in Article 8 of the European Convention on Human Rights. The law renders all agreements unenforceable rather than making it illegal to enter into surrogacy arrangements.
Due to the informal nature of a surrogacy agreement, this non-enforceability has the effect of relieving the parties of any legal obligations. In order to prevent the growth of commercial agencies, neither the commissioning parents nor the surrogate may file a lawsuit because the latter refused to deliver the child.
Is surrogacy a life-giving act as per surrogacy laws in UK?
The current legal framework is ambiguous and widely regarded as inadequate for promoting the welfare of children. A fundamental question is whether surrogacy should be permitted and supported or discouraged in light of the sacredness of childbearing. Because UK common law was founded solely on the child welfare principle, it mainly discusses surrounding the welfare of children.
The current system is ineffective.
Even though more and more people are using surrogacy via UK surrogacy agency to start families, the laws surrounding it are still outdated and insufficient. It can take a while for commissioning parents to apply for a parental order because they currently have to wait until the child is born. Moreover, this process not only leaves everyone in a limbo, but it also interferes with the intended parents’ ability to make decisions for the child in their care and fails to reflect the reality of the child’s family life.
The Law Commission published a thorough report with the goal of giving commissioning parents more protection. It suggests that parental orders be pre-authorized so that intended parents are given legal parent status at birth. It is challenging to oversee the surrogacy process and those involved and ensure that standards are maintained at a high level due to the UK’s inadequate regulation.
Additionally, there is a lack of clarity regarding surrogacy payments and cost of surrogate mother in UK. For instance, Section 2(1) of the SAA forbids initiating and participating in commercial surrogacy, and Section 3 forbids advertising. Intended parents are only permitted to pay the surrogate “reasonable expenses.”
The majority of people agree that habitual residence should be enough to qualify for a parental order, so the current requirement that the commissioning parents be established before receiving one is unnecessary.
By allowing the intended parents to become the child’s legal parents at birth, the commissions’ proposals for a new pathway for parenthood would allay most worries. Moreover, this would enable the law to provide appropriate protection while striking a balance between the rights of the intended parents and the surrogate.