The long awaited report of the Law Commission on the surrogacy laws in England and Wales (alongside the Scottish Law Commission) was published yesterday.

The report has made some positive recommendations which will primarily affect those undergoing surrogacy in the UK. However many will feel that the recommendations do not go far enough in addressing the realities of modern surrogacy, including for families making arrangements overseas. As the use of surrogacy continues to rise, it is a missed opportunity to fully modernise the outdated legal framework, which the Commission recognised was ‘not fit for purpose’.

The most significant recommendation, to enable the intended parents of a child born to a UK surrogate to be given legal parenthood from the birth of the child, will help to resolve one of the key issues with surrogacy in the UK. Moving much of the review process to the stages before birth, with a newly proposed ‘pathway’ to be followed, will help to avoid the uncertainty that currently exists for families between the child’s birth and the making of a parental order.

The report also proposes some safeguards as part of the new pathway, such as written agreements and legal advice for the surrogate and intended parents, which are positive steps to make sure all parties are informed and protected.

However the report provides little progress for those undertaking international surrogacy arrangements. A significant proportion of the families seeking parental orders in the UK have used overseas surrogacy, often due to the uncertainties and restrictions of the UK system. There is not much in the report that addresses their motivations for going overseas, nor any meaningful proposals to improve the long and complicated process on their return.

Finally, the tighter rules on expenses, including which categories of payments are permitted and the threat of criminal sanctions for anyone paying more, will feel unnecessarily strict and punitive, and could lead to a decline in UK surrogates.