PollenTree

A Legal History of Surrogacy

Birth using a surrogate is not illegal in the UK. Surrogates are often used in the process of egg and sperm donation for IVF. However any private surrogacy arrangements must not involve payment.  

1985                      
The Surrogacy Arrangements Act 1985 made it illegal to enter it a commercial surrogacy arrangement or to advertise for or to become a surrogate. The offence is not committed by the woman who would carry the child or the couple for whom she would be carrying it, the offence is committed by any person, company or other agency which negotiates the arrangement. It is also an offence to carry adverts about surrogacy in any publication such as newspapers etc. The Act does not prevent the payment of the surrogates reasonable expenses.  

1990                      
The Human Fertilisation and Embryology Act 1990  made it clear that any commercial surrogacy arrangements would not be enforceable. Surrogacy arrangements made through a clinic must meet a Code of Practice under the 1990 Act. For private arrangements hospitals or social services should alert the local authority who must make enquiries to satisfy itself that no commercial arrangements took place and that the child is not at risk as a result of those arrangements.  

1994                       
Legislation (The Parental Orders (Human Fertilisation and Embryology Regulations 1994) gave the courts power to make 'parental orders'  over a child born as a result of a surrogacy arrangement as long as the child is genetically related to one of the parents and no payments other than reasonable expenses have been paid for the surrogacy arrangement. The Regulations also allow the birth of the child to be registered and used as evidence of the birth of the child. A single person is unable to apply for a parental order and would instead need to apply to adopt the child from the surrogate mother.  

1998                          
The Brazier Report was published on 14th October which recommended that payments to surrogate mothers should be restricted to genuine expenses and that surrogacy arrangements should be subject to proper regulation by registered agencies with a Code of Practice.  

2007            
The EU Tissue Directive led to the Human Fertilisation and Embryology (Quality and Safety) Regulations 2007 which provided that licences must also be obtained for non-medical fertility services directed at internet based businesses that arrange for donated sperm to be delivered to women at home for self-insemination.     

LATEST PROPOSALS
The government passed the Human Fertilisation and Embryoyology Act in November 2008. The Act (Part 4 ) will amend the current law on surrogacy. It will allow not-for-profit bodies to receive payment for providing some surrogacy services. These relate to initiating negotiations with a view to making a surrogacy arrangement (i.e. compiling a lis of contacts) and for compiling information about surrogacy. They will also be allowed to advertise such services. However such bodies will still be prevented from receiving payment  for offering to negotiate a surrogacy arrangement themselves or for taking part in negotiations about a surrogacy arrangement (although they can offer such services for free). It will remain illegal to advertise for or to be a surrogate. These changes are expected to come into force in October 2009.  From April 2010 under proposed new rules by HFEA it will become possible for male couples to apply to the courtys for a parental order which will then allow the child's birth to be registered showing both men as the parents in the parental order register.