The Law Commissions' Consultation on Surrogacy

Closes 11 Oct 2019

Chapter 8: Legal Parenthood: Proposals for Reform - A New Pathway

14. Consultation Question 7:

In respect of a domestic surrogacy arrangement, we provisionally propose that, before the child is conceived, where the intended parents and surrogate have:

(1)          entered into an agreement including the prescribed information, which will include a statement as to legal parenthood on birth,

(2)          complied with procedural safeguards for the agreement, and

(3)          met eligibility requirements,

on the birth of the child the intended parents should be the legal parents of the child, subject to the surrogate’s right to object.

Do consultees agree?

15. Consultation Question 8:

We provisionally propose that regulated surrogacy organisations and licensed clinics should be under a duty to keep a record of surrogacy arrangements under the new pathway to which they are a party, with such records being retained for a specified minimum period.

Do consultees agree?

We invite consultees’ views as to what the length of that specified period should be: whether 100 years or another period.

16. Consultation Question 9: We provisionally propose that the prohibition on the use of anonymously donated gametes should apply to traditional surrogacy arrangements with which a regulated surrogacy organisation is involved. Do consultees agree?
17. Consultation Question 10: We invite consultees’ views as to whether the use of anonymously donated sperm in a traditional, domestic surrogacy arrangement should prevent that arrangement from entering into the new pathway.
18. Consultation Question 11:

We provisionally propose that:

(1)          the surrogate should have the right to object to the acquisition of legal parenthood by the intended parents, for a fixed period after the birth of the child;

(2)          this right to object should operate by the surrogate making her objection in writing within a defined period, with the objection being sent to both the intended parents and the body responsible for the regulation of surrogacy; and

(3)          the defined period should be the applicable period for birth registration less one week.

Do consultees agree?

19. Consultation Question 12:

We provisionally propose that, where the surrogate objects to the intended parents acquiring legal parenthood within the period fixed after birth, the surrogacy arrangement should no longer be able to proceed in the new pathway, with the result that:

(1)          the surrogate will be the legal parent of the child;

(2)          if one of the intended parents would, under the current law, be a legal parent of the child, then he or she will continue to be a legal parent in these circumstances; and

(3)          the intended parents would be able to make an application for a parental order to obtain legal parenthood.

Do consultees agree?

20. Consultation Question 13:

We provisionally propose that, in the new pathway:

(1)          the intended parents should be required to make a declaration on registering the birth of the child that they have no reason to believe that the surrogate has lacked capacity at any time during the period in which she had the right to object to the intended parents acquiring legal parenthood;

(2)          if the intended parents cannot provide this declaration then, during the period in which she has the right to object to the intended parents acquiring legal parenthood, the surrogate should be able to provide a positive consent to such acquisition; and

(3)          if the intended parents are unable to make this declaration and the surrogate is unable to provide the positive consent within the relevant period, the surrogacy arrangement should exit the new pathway and the intended parents should be able to make an application for a parental order.

Do consultees agree?

21. Consultation Question 14:

We provisionally propose that, in the new pathway, the welfare of the child to be born as a result of the surrogacy arrangement:

(1)          should be assessed in the way set out in Chapter 8 of the current Code of Practice;

(2)          either the regulated surrogacy organisation or regulated clinic, as appropriate, should be responsible for ensuring that this procedure is followed; and

(3)          there should be no requirement for any welfare assessment of the child after his or her birth.

Do consultees agree?

22. Consultation Question 15:

We provisionally propose that, for a child born as a result of a surrogacy arrangement under the new pathway, where the surrogate has exercised her right to object to the intended parents’ acquisition of legal parenthood at birth, the surrogate’s spouse or civil partner, if any, should not be a legal parent of the child.

Do consultees agree?

We invite consultees’ views as to whether, in the case of a surrogacy arrangement outside the new pathway, the surrogate’s spouse or civil partner should continue to be a legal parent of the child born as a result of the arrangement.

23. Consultation Question 16:

We provisionally propose that, in the new pathway, where a child born of a surrogacy arrangement is stillborn:

(1)          the intended parents should be the legal parents of the child unless the surrogate exercises her right to object; and

(2)          the surrogate should be able to consent to the intended parents being registered as the parents before the expiry of the period of the right to object.

Do consultees agree?

We provisionally propose that, outside the new pathway, where a child born of a surrogacy arrangement is stillborn, the surrogate should be able to consent to the intended parents being registered as the parents before the expiry of the period allowed for the registration of the birth, provided that the intended parents have made a declaration to the effect that the relevant criteria for the making of a parental order are satisfied, on registration of the stillbirth.


Do consultees agree?

 

24. Consultation Question 17: We provisionally propose that, for surrogacy arrangements outside the new pathway, where the child dies before the making of the parental order, the surrogate should be able to consent to the intended parents being registered as the parents before the expiry of the period allowed for the registration of the birth, provided that the intended parents have made a declaration to the effect that the relevant criteria for the making of a parental order are satisfied, on registration of the birth. Do consultees agree?
25. Consultation Question 18: For surrogacy arrangements in the new pathway, we invite consultees’ views as to whether, where the surrogate dies in childbirth or before the end of the period during which she can exercise her right to object, the arrangement should not proceed in the new pathway and the intended parents should be required to make an application for a parental order.
26. Consultation Question 19:

We provisionally propose that, for surrogacy arrangements in the new pathway, where both intended parents die during the surrogate’s pregnancy, the intended parents should be registered as the child’s parents on birth, subject to the surrogate not exercising her right to object within the defined period.


Do consultees agree?
 

We invite consultees’ views as to whether, for surrogacy arrangements outside the new pathway, where both intended parents die during the surrogate’s pregnancy or before a parental order is made:

(1)          it should be competent for an application to be made, by a person who claims an interest under section 11(3)(a) of the Children (Scotland) Act 1995, or who would be permitted to apply for an order under section 8 of the Children Act 1989:

(a)          for an order for appointment as guardian of the child, and

(b)          for a parental order in the name of the intended parents, subject to the surrogate’s consent; or

(2)          the surrogate should be registered as the child’s mother and it should not be possible for the intended parents to be registered as the child’s parents, but that there should be a procedure for the surrogate to provide details of the intended parents, and, if relevant, gamete donors, for entry onto the register of surrogacy arrangements.

27. Consultation Question 20:

We provisionally propose that, where an application is made for a parental order by a sole applicant under section 54A:

(1)          the applicant should have to make a declaration that it was always intended that there would only be a single applicant for a parental order in respect of the child concerned or to supply the name and contact details of the other intended parent;

(2)          if details of another intended parent are supplied, a provision should be made for notice to be given to the potential second intended parent of the application and an opportunity given to that party to provide notice of opposition within a brief period (of, say, 14 to 21 days); and

(3)          if the second intended parent gives notice of his or her intention to oppose, he or she should be required to make his or her own application within a brief period (say 14 days), otherwise the application of the first intended parent will be determined by the court.

Do consultees agree?

28. Consultation Question 21: We invite consultees’ views as to: (1) a temporary three-parent model of legal parenthood in surrogacy cases; and (2) how the legal parenthood of the surrogate should be extinguished in this model.
29. Consultation Question 22:

We invite consultees’ views:

(1)          as to whether there should be any additional oversight in the new pathway that we have proposed, leading to the acquisition of legal parenthood by the intended parents at birth; and

(2)          if so, as to whether should this oversight be:

(a)          administrative, or

(b)          judicial.

30. Consultation Question 23:

In respect of England and Wales, we invite consultees’ views as to:

(1)          whether the welfare checklist, contained in section 1(3) of the Children Act 1989, should be amended to provide for the court to have regard to additional specific factors in the situation where it is considering the arrangements for a child in the context of a dispute about a surrogacy arrangement; and

(2)          if so, as to what those additional factors should be.

31. Consultation Question 24:

In respect of England and Wales, we invite consultees’ views:

(1)          as to whether the checklist, contained in section 1(4) of the Adoption and Children Act 2002 (as applied and modified by regulation 2 and paragraph 1 of Schedule 1 of the 2018 Regulations) should be further amended to provide for the court to have regard to additional specific factors in the situation where it is considering whether to make a parental order; and

(2)          what those additional factors should be.

32. Consultation Question 25: We invite consultees’ view as to whether section 10 of the Children Act 1989 should be amended to add the intended parents to the category of those who can apply for a section 8 order without leave.
33. Consultation Question 26:

We provisionally propose that, where a child is born as a result of a surrogacy arrangement outside the new pathway, the intended parents should acquire parental responsibility automatically where:

(1)          the child is living with them or being cared for by them; and

(2)          they intend to apply for a parental order.

Do consultees agree?

34. Consultation Question 27:

We provisionally propose that, where a child is born as a result of a surrogacy arrangement in the new pathway:

(1)          the intended parents should acquire parental responsibility on the birth of the child; and

(2)          if the surrogate exercises her right to object, the intended parents should continue to have parental responsibility for the child where the child is living with, or being cared for by, them, and they intend to apply for a parental order.

Do consultees agree?

35. Consultation Question 28: We provisionally propose that, for surrogacy arrangements within the new pathway, the surrogate should retain parental responsibility for the child born as a result of the arrangement until the expiry of the period during which she can exercise her right to object, assuming that she does not exercise her right to object. Do consultees agree?
36. Consultation Question 29:

For all surrogacy arrangements, we invite consultees’ views as to:

(1)          whether there is a need for any restriction to be placed on the exercise of parental responsibility by either the surrogate (or other legal parent), or the intended parents, during the period in which parental responsibility is shared; and

(2)          whether it should operate to restrict the exercise of parental responsibility by the party not caring for the child or with whom the child is not living.