The Law Commissions of England and Wales and Scotland published a report and draft Bill this week outlining recommendations to the UK Government to reform the law on surrogacy. This is a positive first step for children, surrogates and intended parents trying to navigate rules that are almost 40 years old. Will the proposed new law help those families embarking on a surrogacy arrangement outside the United Kingdom? Probably not.

The Report ‘Building Families Through Surrogacy: A New Law’ recommends various reforms to the law on surrogacy that are extremely positive, such as the front-loading of paperwork prior to the birth of the baby, creating a new pathway to legal parenthood at birth and specifying which payments to the surrogate are permitted.

The report stops short when it comes to international surrogacy and only calls for very limited reform on nationality and immigration issues with the stated aim of the recommendations to be avoiding unnecessary delay. The report is weary of ‘surrogacy tourism’ and adopts the position to encourage surrogacy arrangements within the UK to ensure the protections of the proposed law and to avoid a risk of exploitation. This is surprising as CAFCASS indicates that up to half of surrogacy arrangements in the UK have an international element, so the proposals may only help up to 50% of those it is seeking to target. This is estimated at 200 surrogate children per year in the report. Include the parents and surrogate mothers and this could affect up to 800 people per year. An opportunity missed?

Under the proposed changes, international surrogacy arrangements are excluded from the new pathway and therefore the intended parents will still need to apply for a UK parental order. However there are positive changes in the proposals for international surrogacy:

  1. That the surrogate’s spouse is not deemed the legal parent of the child for nationality purposes. This will make it easier for children born to married surrogates in international arrangements to acquire British nationality from a genetically related, British, intending parent.
  2.  A recommendation that the UK Immigration Rules are changed to allow a visa for a child born through surrogacy to enter the UK. At the moment, such applications are outside the Immigration Rules and at the discretion of the UK immigration authorities, with the case being deemed complicated and therefore processing times long and with a risk of refusal. The document checklist is long and the guidance unwieldly.
  3. A proposal to allow the intending parents to open a file for a passport application or visa prior to the child’s birth, although they cannot be processed until after the birth. If applications could be pre-assessed, this would be positive step, although, in practice this will not happen given the resources at the Home Office. A more considered approach would be to reduce the processing times in such applications or open a fast-track option.

The main hurdle to the progression of this proposed Bill is the will of the current Conservative government to introduce such a Bill to Parliament given deeply held views on the subject and a General Election looming. They are unlikely to want to rock the boat when they say they are trying to stop the boat.

Secondly, the Home Office (including HM Passport Office) do not have the will or the resources to speed up the citizenship or visa process in this area. They routinely categorise them as complicated cases and they often take months to make a final determination, causing stress, anguish and often financial hardship to the new parents.

Whilst the Law Commission report is a welcome step, I don’t think those starting the path to starting a family through surrogacy should hold their breath for a change soon. They may be grandparents by the time the law is updated.

If you have any questions in relation to this article, please contact Paul McCarthy