The pitfalls of surrogacy arrangements

Natasha Slabas highlights deficiencies in the law relating to surrogacy and the need for reform.

The law in England and Wales remains without a robust framework of legislation to enforce surrogacy arrangements. While the Surrogacy Arrangements Act 1985 (SAA 1985), and other legislation, governs surrogacy arrangements, it remains that a surrogacy agreement is not enforceable by or against any of the persons making it. The consequence is that childless couples may decide to venture outside of the UK in order to enter into a surrogacy arrangement. Their escape from the inauspicious English system is short lived however because steps then need to be taken on returning with the child to secure their legal parental status in England and Wales, usually by an application for a parental order. Those returning with a child after an overseas surrogacy arrangement may not know of, let alone understand, the procedure for ensuring that their parental status is recognised in the UK.

Case law demonstrates that judges are prepared to manoeuvre the law wherever possible to prevent parentless children from evolving, but cases may pass through the net with consequences that are less than preferable. A review and amendment of the relevant legislation is necessary and overdue.

Background

The Warnock Report (1984) was the report of the Committee of Enquiry into Human Fertilisation and Embryology, chaired by Mary Warnock and collated by several professionals. It made clear that a surrogacy agreement is an illegal contract and not enforceable in the courts. The report also recognised however that it is inevitable that private surrogacy arrangements will take place, regardless of the lack of enforceability.

Current legislation

The legislation in the UK governing surrogacy arrangements is wide-ranging, and adds to the complexity in deciphering the rules and restrictions. The key legislation is:

• SAA 1985
• Human Fertilisation and Embryology Act 2008 (HFEA 2008)
• Human Fertilisation and Embryology (Parental Orders) Regulations 2010
• Part 13 of the Family Procedure Rules 2010 (FPR 2010); and
• Section 1 of the Adoption and Children Act