Today, 29 March, the Law Commissions of England and Wales and the Scottish Law Commission have released a government-commissioned review of 40-year-old existing laws on surrogacy, recommending that the intended parents of children born to surrogate mothers should become legal parents from birth, providing they follow a new ‘pathway’ through surrogacy, supported by a Regulated Surrogacy Organisation.
Currently, intended parents must wait until the child has been born and then apply to court to become the child’s legal parents. The process often takes up to a year to complete, meaning the surrogate is the child’s legal parent, which doesn’t reflect the reality of the child’s family life, and can affect the intended parents’ ability to make decisions about the child in their care. This is – as the Law Commissions have identified – not in the best interests of anyone concerned, least of all the child.
On The Law Commissions’ recommendations for reform, which proposes a new regulatory regime for surrogacy that offers clarity, safeguards and support – for the child, the surrogate and the parents who will raise the child, Dr Kirsty Horsey, Reader in Law at Kent Law School, said:
‘It’s great that the Law Commissions have finally published their recommendations, which are extensive and brave, and take into account the lived experience of those who create families through surrogacy in the UK. My previous research has shown that surrogates neither see themselves as the mother of the children they give birth to in surrogacy arrangements, nor want to be recognised as such.
‘It is good to see a recognition of existing good practice in relation to domestic surrogacy arrangements and no move towards commercialisation. In particular, I welcome the recommendation that there will be a new pathway allowing intended parents in surrogacy to become legal parents from birth, something I have argued should happen for a very long time. Also, the creation of Regulated Surrogacy Organisations, overseen and licensed by the Human Fertilisation and Embryology Authority, gives more legitimacy to surrogacy as a modern form of family building.’
Dr Horsey’s long-term research interest focuses on the laws regulating surrogacy. She has worked with external non-profit and charitable organisations to facilitate and encourage reform. One such collaborative project – the SurrogacyUK Working Group on Surrogacy Law Reform – led to the publication of two Research Reports on the state of the law governing surrogacy, together with recommendations for reform, in 2015 and 2018 (see publications list). Dr Horsey is also part of the secretariat for the All-Party Parliamentary Group on Surrogacy. She is currently working on an empirical research project on surrogacy, with both surrogates and intended parents, at the London Women’s Clinic.
Dr Horsey’s recent research, ‘Children’s Voices in Surrogacy Law’, marked the first time that the views of children were included in a review of surrogacy laws. The work has influenced the Law Commissions in looking at how children understand surrogacy and how they think the law should be. Using a combination of age-appropriate methods, including a unique set of playing cards, Dr Horsey and the Children’s Voices team obtained children’s views on surrogacy topics – including how the legal parents of a child born through surrogacy should be decided, whether children should know details of their surrogate, and compensation for surrogates.