Surrogacy law reform on the horizon — taking an international view

4 July 2024

5 min read

The Republic of Ireland has introduced its historical first regulatory framework for human-assisted reproduction, which includes domestic and international surrogacy. What can we learn from this in England and Wales?

Here, family and fertility law expert Joe Ailion explores the key talking points from our neighbour’s new framework and asks — are there lessons we can learn here?

A brief history of surrogacy law

The law related to surrogacy in England and Wales is comprised of various pieces of legislation, put together like patchwork — often in an attempt to keep pace with scientific progress and societal views.

For example, it’s widely accepted that the first piece of legislation to deal with surrogacy regulation — the Surrogacy Arrangements Act 1985 — was rushed through Parliament in a panicked attempt to regulate (or even disincentivise) surrogacy in response to the widely-publicised birth of Britain’s first commercial surrogate baby.

Culturally, at that time, surrogacy was taboo and controversial. The compromise position reached in Parliament was that surrogacy can be permitted in law but only when altruistic — in other words, not for commercial enterprise — and subject to various conditions.

This remains a fundamental aspect of surrogacy law in England and Wales today. However, in response to increasingly liberal social and political views on ‘modern families’, attempts were made to modernise the law and create a channel to recognise increasingly common surrogacy arrangements like the Parental Order process within the Human Fertilisation and Embryology Acts 1990 and 2008.

If the Law Commission’s 2023 report is to be believed, Parliament has largely failed to keep the law in-step with modern times. The Law Commission has made proposals for large-scale reforms, though this remains in statis, low down the legislative agenda in today’s political climate.

International developments

With a new law for surrogacy still up for discussion, it’s always wise to keep an eye on international trends and legal developments to see what’s taking place elsewhere.

The Republic of Ireland will shortly introduce groundbreaking legislation that deals with gamete and embryo donation, surrogacy and related issues. According to the Irish Health Minister, Stephen Donnelly, the new Irish law will “introduce, for the first time in [Ireland], a regulatory framework for assisted human reproduction”.

It’s therefore interesting to see the Irish starting point from a clean slate. Some notable issues arising from the Health (Assisted Human Reproduction) Bill 2022 — now approved and shortly to be enacted in Ireland — are set out below.

Prohibiting commercial surrogacy

The Bill prohibits commercial surrogacy agreements. On the surface, this will work much like it does in England and Wales. This is interesting, as many commentators would suggest that English legal opinion is veering towards permitting some aspects of commercial surrogacy. Others would suggest that we’re already there, given the leniency of the judiciary when it comes to permitted payments.

You should always treat such views carefully and obtain tailored legal advice.

Expense payments

Much like in England and Wales, the Bill only permits the payment of reasonable expenses to a surrogate. However, it goes further than English law to plug the gap in understanding what ‘reasonable expenses’ actually are by providing a list. English law is unclear on this — relying on a subjective understanding of ‘reasonable’ that has been applied generously by the Court, which may also retrospectively approve any payments that go beyond expenses in some cases, with careful planning.

Surrogacy restrictions

The Bill only allows surrogacy for those who can’t conceive or healthily carry a child through any other method. In the case of same-sex female couples, for example, this goes so far as to require that neither partner could conceive otherwise before turning to surrogacy. These are notable restrictions that go far beyond the criteria required by English Law (per Section 54 of the Human Fertility and Embryology Act 2008), which requires only that one of the intended parents is biologically related to the child. English law doesn’t seek to regulate the reasons why people turn to surrogacy.

Legal parentage

The Bill is consistent with English law in that it recognises the surrogate as the legal parent of a child at birth and creates no binding obligation on her in respect of the arrangement prior to birth. By contrast, it does mandate that intended parents undertake to care for a child born through surrogacy and make an application for a parental order on their birth. In England and Wales, there are no such guarantees. Here, a surrogacy arrangement is — strictly speaking — non-binding on both intended parents and surrogate until a Parental Order is made.

The surrogate’s consent to the making of a Parental Order is also a key feature of the new Irish law, which also requires that the surrogate consents to the child living with the intended parents pending that order being made.

Mandated legal advice

The Bill mandates that all prospective surrogates and intended parents obtain independent legal advice. While this is wise — given what’s at stake in these cases — it isn’t a legal obligation in England and Wales.

Does reform lie ahead for England and Wales?

Surrogacy law reform has been an active debate in England and Wales for a number of years. The Law Commission has made recommendations for the wholesale reform of English law on this subject. It’ll be interesting to see whether acting on the drive for reform will find its way into the parliamentary agenda.

If it does, it’ll be interesting to see whether aspects of the new Irish surrogacy scheme will be adopted or considered.