Expert comment: Law Commission surrogacy report

Professor Thérèse Callus says: “The report is a weighty contribution to much needed reform. Society, and ultimately Parliament, will need to scrutinise the detail if we are to achieve better regulation of surrogacy.

“The Law Commission’s proposals are an important step forward in offering updated regulation of an already established practice. They should be lauded as a good example of how law reform proposals can, and should, be informed by the lived reality of those people for whom they are made. However, many questions remain:

“Why has the Law Commission kept the requirement for at least one of the intended parents to have a genetic link with the child? Does this prevent totally sterile couples or transgender persons from accessing surrogacy? How can birth registration reflect the legal position given the current law that the person who gives birth must be registered as the mother? What effect does de-coupling gestation and birth from the legal status of mother have beyond surrogacy? How will a court rule if a surrogate changes her mind after the birth and must apply for a parental order?

“Given the opacity of payments to surrogates and the potential for duress and exploitation, what would be perceived as permitted ‘modest’ gifts?

“On what basis can criminal checks on all parties pre-conception be justified?

“This is a good start, but there is much more work to be done to reform the legislation.”