The Law Commissions' Consultation on Surrogacy

Closes 11 Oct 2019

Chapter 12: Eligibility Criteria for Both a Parental Order and for the New Pathway

64. Consultation Question 56:

We provisionally propose that, both for a parental order and in the new pathway, the intended parents or one of the intended parents must be domiciled or habitually resident in the UK, Channel Islands or Isle of Man. Do consultees agree

We invite consultees’ views as to whether there should be any additional conditions imposed on the test of habitual residence, for example, a qualifying period of habitual residence required to satisfy the test.

65. Consultation Question 57:

We invite consultees’ views on whether:

(1)          the qualifying categories of relationship in section 54(2) of the HFEA 2008 should be reformed and, if so, how; or

(2)          the requirement should be removed, subject to two persons who are within the prohibited degrees of relationship being prevented from applying.

66. Consultation Question 58: We provisionally propose that to use the new pathway, intended parents should be required to make a declaration in the surrogacy agreement that they intend for the child’s home to be with them. Do consultees agree?
67. Consultation Question 59:

We provisionally propose that the new pathway:

(1)          should not impose a requirement that the intended parent, or one of the intended parents, provide gametes for the conception of the child, so that double donation of gametes is permitted, but

(2)          that double donation should only be permitted in cases of medical necessity, meaning that there is not an intended parent who is able to provide a gamete due to infertility.

Do consultees agree?

We invite consultees’ views as to whether double donation should be permitted under the parental order pathway (to the same extent that it may be permitted in the new pathway) in domestic surrogacy arrangements.

We provisionally propose that the requirement that the intended parent or one of the intended parents contribute gametes to the conception of the child in the parental order pathway should be retained in international surrogacy arrangements.

Do consultees agree?

68. Consultation Question 60: We provisionally propose that if the requirement for a genetic link is retained for domestic cases outside the new pathway, the requirement should not apply, subject to medical necessity, if the court determines that the intended parents in good faith began the surrogacy arrangement in the new pathway but were required to apply for a parental order. Do consultees agree?
69. Consultation Question 61: We provisionally propose that if double donation is permitted only in cases of medical necessity, an exception should be made to allow a parental order to be granted to a single parent without a genetic link where the intended parent’s former partner provides gametes but the intended parents’ relationship breaks down before the grant of a parental order. Do consultees agree?
70. Consultation Question 62:

We invite consultees’ views as to whether there should be a requirement that a surrogacy arrangement has been used because of medical necessity:

(1)          for cases under the new pathway to parenthood; and/or

(2)          for cases where a post-birth parental order application is made.

We invite consultees’ views as to how a test of medical necessity for surrogacy, if it is introduced, should be defined and assessed.

71. Consultation Question 63:

We provisionally propose that in order to use the new pathway to parenthood, information identifying the child’s genetic parents and the surrogate must be provided for entry on the national register of surrogacy agreements prior to registration of the child’s birth. Do consultees agree? 

We invite consultees’ views as to whether it should be a condition for an application for a parental order that:

(1)          those who contributed gametes are entered on the national register of surrogacy agreements; and/or

(2)          if it remains a requirement that one of the intended parents provided gametes in the conception of the child, that the genetic link is demonstrated to the court with medical or DNA evidence.

We provisionally propose that it should be a condition for the application of a parental order that the identity of the surrogate is entered on the national register of surrogacy agreements.

Do consultees agree?

72. Consultation Question 64:

We provisionally propose that there should be no maximum age limit for the grant of a parental order. The age of the intended parents should continue to be taken into account in the assessment of the welfare of the child in applications to grant a parental order.

Do consultees agree?

We invite consultees’ views as to whether under the new pathway there should be a maximum age limit for intended parents, and if so, what it should be.

We provisionally propose that intended parents should be required to be at least 18 years old at the time that they enter into a surrogacy agreement under the new pathway.

Do consultees agree?

73. Consultation Question 65:

We provisionally propose that surrogates should be required to be at least 18 years of age (at the time of conception), in order for the court to have the power to make a parental order.

Do consultees agree?

We provisionally propose that surrogates should be required to be at least 18 years old at the time of entering into the surrogacy agreement within the new pathway.

Do consultees agree?