‘Out of date’ fertility laws should be reformed, say lawyers

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Nov 08, 2017
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Many of those considering surrogacy are looking overseas because they find British law confusing

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Britain’s fertility laws desperately need reform because they have failed to keep pace with “social realities”, specialists argue.

A survey at the Fertility Show conference in London found the overwhelming view that the legislative landscape in the UK was so confusing that the vast majority of those considering surrogacy would look to overseas agencies.

Most of those considering going abroad were unaware of the lack of international treaties or agreements between the UK and other countries, it found.

Lawyers called for parliament to tidy up the legislative position at home. “The UK fertility and surrogacy laws are a mess and consistently fail to keep up with social realities,” Lois Langton, a partner at Howard Kennedy, the London law firm that carried out the research, said.

“It is particularly worrying that 42 per cent of those people we asked do not know who the legal parent of a child born via fertility treatment, whether through a licensed clinic or otherwise, would be. That can cause real problems for the child, the birth mother, her partner — if she has one — and the intended parents. 

“Reform is most definitely needed to address our out-of-date laws which are simply not fit for purpose.” 

Lawyers said that the most significant issue was that a surrogacy arrangement was not recognised as a binding agreement between the commissioning parents and the surrogate. Instead the arrangement is based on trust between those involved. 

Britain, which still bans commercial surrogacy, is also falling behind other countries on the issue. US states such as California allow the practice provided that “reasonable expenses” are paid to the surrogate.

Langton said that the UK’s ban on commercial surrogacy “means that there are relatively few available surrogates in this country which forces couples to look overseas, often to countries where commercial surrogacy is permitted.

“Those couples are then faced with the problem that they have fallen foul of UK law by paying more than reasonable expenses. Whilst the courts here may well retrospectively sanction the payments, there can be no guarantee that this will happen.”

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