Partner Michael Gregory examines legal proposals in Italy to penalise those travelling for surrogacy, and calls for more progressive surrogacy reform in the UK.
Michael’s article was published in eprivateclient, 5 April, and can be found here.
Italy’s conservative government intends to pass a proposed bill that would see Italian couples faced with fines or even imprisonment should they travel overseas to have a child through surrogacy.
This has sent shock waves amongst many which saw the proposed law reform as being unworthy of any modern European country in 2023.
Surrogacy has been illegal in Italy since 2004, but those wanting to have a child though surrogacy had been able to find surrogates overseas and have looked towards such countries as the USA, Canada, India, and other European countries to help with their parentage journey.
The new law being proposed in Italy could see couples who travel abroad for surrogacy faced with fines of up to a million euros or a prison sentence of up to two years upon their return.
At home in the UK, surrogacy is not illegal, although “commercial” surrogacy is. It can be a criminal offence to make or negotiate a commercial surrogacy agreement or even initiate or take part in any such agreement.
A surrogacy arrangement would be “commercial” if someone other than the surrogate receives a payment in respect of making, negotiating, or facilitating the making of a surrogacy agreement with a view to receiving payment in the UK.
It would be a criminal offence, for example, for a solicitor to make or negotiate a surrogacy agreement. Any such agreement in any event would be unenforceable.
The simple arrangement however between a surrogate and a person or couple – commonly called the commissioning or intended parent(s) – which is made before the surrogate begins to carry the child, with a view to that child being cared for by the intended parent(s), is a legally recognised pathway to parenthood for many couples that are hoping to start a family in the UK. It certainly is not subject to criminal sanctions, as would new proposals in Italy call for.
The principal route intended parent(s) take following a surrogacy arrangement in the UK or following a surrogacy arrangement overseas, to ensure their legal parentage is recognised, is to obtain a parental order.
This order seeks to extinguish any parental rights that the surrogate may have by being the birth mother and will ensure that legal parentage is then acquired by the intended parent(s).
Since parental orders were first introduced in 1994, they have become increasingly more inclusive as attitudes to more diverse family forms have evolved. Originally, only opposite-sex married couples could apply.
However, in 2010 the legislation was amended to include same-sex and unmarried couples, and in 2019, single parents were finally added too. The courts over the years have played a pivotal role, interpreting the law flexibly to enable parental orders to be made where parents have separated, died, or have even been in co-parenting relationships rather than intimate ones.
However, ongoing calls for further reform of UK surrogacy law have been consistent for several years. The Law Commission back in 2019 provided a report and consultation paper on the reform of English surrogacy law which called for the greater protection and transparency for both intended parents and surrogates here in England.
Unfortunately, those calls for reform remained at large unchanged but now following a further extensive project by the Law Commission of England and Wales and the Scottish Law Commission, on the 29 March 2023 the Law Commission published its final recommendations for the further modernisation of UK surrogacy law which are to:-
– Provide a new pathway for UK surrogacy which if followed correctly, would allow for intended parents to be registered on the child’s birth certificate allowing them to be legal parents from birth without the need for post-birth court processes.
– Provide greater flexibility for courts to address disputed surrogacy arrangements.
– Reform the law governing payments from intended parents to surrogates.
– Create a surrogacy register to allow those born through surrogacy to access their origins.
Although the reform proposals have been welcomed, they have provided no change to overseas surrogacy arrangements with intended parents still having to apply for parental orders upon their return to the UK to reassign parenthood.
Furthermore, and far more concerning, is that the intended parent(s) would need to account for every penny they pay their surrogate against a backdrop of strict expenses lists; with intended parents potentially facing criminal sanctions if they have paid their surrogate too much.
The government will now need to decide whether to implement the commission’s recommendations and change the law which could still take years to achieve.