In a previous article on surrogacy, we looked at how Tom Daley and his husband Dustin Lance Black had used a surrogate mother in the US to become parents to their son Robert Ray.

Despite them being recognised as their son’s parents in California, the state their baby was born in, they were still required to obtain a Parental Order in the British courts showing the marked difference between UK and US law.

In this article we will look at how the current law is not fit for the society we currently live in and what needs to change.

The law at present

At present surrogate mothers in the UK cannot receive payments, only expenses, this can unfortunately lead to more and more parents turning to surrogates abroad to achieve the certainty they need. In the UK the surrogacy arrangement is not a legally binding contract, more an informal arrangement between intended parents and the surrogate, with the legal process beginning only after the child has been born.

Regulation is needed from the beginning of the process through the use of screening, written agreements, support and counselling, and would therefore guard against exploitation.

Surrogate mothers do not decide to become surrogates for financial reasons, however they should be properly financially compensated for them effectively giving up a year of their life to allow others to become parents. The courts will authorise expenses to surrogates in the region of £15,000, however the uncertainty over what is and is not expenses can lead to unnecessary stress and worry for those entering into surrogacy arrangements.

Review of the laws surrounding surrogacy

The Department of Health has provided funding for The Law Commission to start work on a review of the laws surrounding surrogacy. The current legislation is derived from law made over 30 years, the fact that the courts now make approximately 300 parental orders per year as opposed to approximately 50 per annum 10 years ago, is evidence enough that the law needs to change. The law which was written over 30 years ago is not now fit for the world we live in today.

For many, having a child is the best day of their lives and surrogacy can be the only option for some who want a genetic link to the baby. But the issues are difficult and there is no quick fix” - Professor Nick Hopkins (Law Commissioner for England and Wales)

The Law Commission has already identified some of the issues we have identified in this and our last article, namely that the legal process can only really start post birth and the uncertainties over the use of international surrogates. The laws need to work effectively for all, the surrogate, the parents and most importantly the child.

What we are left with

What we are left with is a system which is currently clearly outdated but which is still an area of confusion for many parents. There is confusion over how and when a Parental Order can be applied for and also what is classed as reasonable expenses. It is for this reason that it’s important that if you are considering the use of a surrogate to seek legal advice.