Surrogacy reform has moved a step closer with the news that the government met the Law Commission last month to discuss recommendations which had appeared to be gathering dust.

After consulting on surrogacy reforms in 2019, the Law Commission of England and Wales and the Scottish Law Commission published their final report in 2023 detailing a robust new system to govern surrogacy.

Family law commissioner Professor Nick Hopkins said at the time that surrogacy had been increasingly used in recent years to form families ‘but our decades-old laws are outdated and not fit for purpose’.

The commissions recommended a new pathway to legal parenthood for domestic surrogacy arrangements that would allow the intended parents to be the legal parents from birth. Other recommendations included a new surrogacy register to allow those born through surrogacy to discover information about their origins.

The Department of Health and Social Care confirmed to the Gazette that minister Baroness Meron met the Law Commission last month to discuss the commission’s report and draft bill. ‘We are considering the report and will publish our response in due course,’ a spokesperson said.

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Emma Dewhurst, senior associate at family law boutique Hall Brown, said the commission’s work focused on domestic reform but current legislation has much wider knock-on effects. ‘That is not just down to the time taken to obtain a parental order,’ Dewhurst said. ‘Intended parents embarking on a surrogacy arrangement in the UK are prevented from obtaining a pre-birth order.

'Although not recognised in the UK, it is something which can be agreed overseas, giving all parties greater security in the place where the child is to be born.

'As a result, and as our workload illustrates only too well, intended parents often decide to pursue international surrogacy arrangements instead.'

A recent family court ruling by Mrs Justice Theis highlighted 'how that process is far from risk-free and can itself create complications for children, intended parents and surrogates alike', Dewhurst added.

'If anything, that judgment emphasised the importance of taking specialist legal advice before embarking on overseas surrogacy arrangements in order to avoid difficulties.'