Surrogacy Law has become an issue of great debate, especially in the UK. Currently, the UK uses surrogacy laws that were enacted in the 1980s. At the moment the law is inconsistent.
The Issues Facing Surrogacy Law.
The major issues includes:
1. Tedious court processes.
The court has contributed greatly towards the inconsistency of surrogacy law. Being a common law jurisdiction, the decisions of higher courts are binding on the lower courts.
Furthermore, a surrogacy agreement is unenforceable in UK courts. This puts the parents of the child at a great disadvantage if the surrogate goes to court to contest the agreement. If th
In their decisions, the courts have authorized compensation paid to surrogates. This is contrary to written law that provides that compensation should only be limited to “reasonable explanation”.
2. Parliament’s reluctance to instigate Surrogacy Reform Law.
Parliament has the duty to reform any law that is deemed insufficient and so far they have failed in that duty. There are lacunas in the current law that need to be addressed.
The fact that the legal parents under UK law are the surrogate and her spouse, if she has one. This provision defeats the purpose of surrogacy. Parents that acquire children through surrogacy from overseas are not legal parents in the UK.
It is a crime in the UK to advertise for surrogacy and to make a profit from it. This has led to a situation where there are less than enough surrogates in the country. Furthermore, parents are being forced to travel overseas to get a favorable surrogacy agreements.
The Potential Way Forward.
Public outcry may finally force the government to instigate surrogacy reform law. About 2000 people signed a petition demanding reform.
Legal experts have suggested the following reforms:
- Upon consent of all parties, the potential parents should be treated as the legal parents of the surrogate child.
- The law and the courts should treat surrogacy agreements as enforceable.
- Surrogate children and parents conceived abroad should be treated as legal persons in the UK.
- The law should be clear on the issue of surrogate compensation. The law should, in as much as possible, reflect the situation on the ground.
- The welfare of the child should always come first in UK courts.
It remains unclear as to whether parliament will look to reform surrogacy law. However, the situation on the ground indicates that reform is needed.
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