Big changes could be coming to surrogacy laws in the UK – potentially the biggest overhaul to family law since the introduction of no-fault divorces.

The Law Commission of England and Wales and the Scottish Law Commission are independent bodies set up by Parliament to review legislation and recommend reforms.

The issue of surrogacy is a pressing one. There's been an increase in demand over recent years – and the government recognises it as a valid way to start a family. However, there are concerns that existing laws don't put the well-being of the child, the surrogate and the intended parents first.

At present, intended parents have to claim parental responsibility in the courts after the child's birth. This can lead to waits of up to a year.

The Law Commission proposes a "new pathway", which would introduce thorough scrutiny, screening and safeguarding before conception. Intended parents would no longer have to apply for a parental order – rather, they would be given parental status upon the child's birth.

Despite this change, the right of the surrogate mother to withdraw her consent would still be honoured – and some intended parents would still need to get a parental order through the courts.

Commercial surrogacy is illegal in the UK. At the time of writing, you're only allowed to pay expenses to a surrogate mother. The Law Commission's new pathway would maintain this state of affairs – but would also clarify the payments that a surrogate can legally receive.

Another issue is the existence of international surrogacy, which can lead to the exploitation of women and children in other countries. The reforms seek to make domestic surrogacy attractive and reduce intended parents' desires to look overseas.

Finally, there would be a Surrogacy Register. This would enable children to trace their birth later on in life.

In the words of Professor Nick Hopkins at the Law Commission, the reforms promise "a new regulatory route with greater legal certainty, transparency and safeguards against exploitation" and "an effective regime for surrogacy agreements that places the interests of the child at their heart". 

The reforms at a glance

• Scrutiny of the process would begin before conception. This would include independent legal advice, medical checks, criminal record checks and counselling.
• Intended parents would become parents of the surrogate child from birth. They would no longer have to obtain a parental order. The surrogate mother would still have the right to withdraw consent.
• The process would be overseen by not-for-profit Regulated Surrogacy Organisations (RSOs). These in turn would be overseen by the UK government's Human Fertilisation and Embryology Authority (HFEA).
• A new Surrogacy Register would be introduced. This would allow children to trace their birth origins in later life.
• Courts would be given the power to impose a parental order without the surrogate's consent – but only if it was demonstrably in the child's interests.
• Commercial surrogacy would continue to be prohibited but rules on payments to surrogates would be clarified and tightened.
• The reforms are designed to make domestic surrogacy more attractive than its international counterparts.

In other family law news…

The government has launched its Transparency Pilot scheme

As well as proposed reforms to surrogacy laws, there could be changes to transparency in the family justice system.

Family courts have the power to decide where children should live and whether they should be taken into care. But until now, these cases have taken place behind closed doors.

Unlike other trials, they're not subject to "open justice". In practice, this means that the general public – and even members of the parties' wider families – aren't allowed in the courtroom.

But a new pilot scheme is allowing accredited journalists to report on some family law cases. The scheme runs from January 2023 to January 2024 in Leeds, Carlisle and Cardiff Family Courts and will cover both public and private law cases.

The aim is to encourage greater scrutiny of local authorities and the family justice system. In doing so, it aims to promote confidence in the process.

Journalists will be given witness statements and expert reports – but judges retain the right to withhold them and to restrict reporting. If the journalist reports the case, all parties will be anonymised.

Open justice is an important part of the British legal system. This scheme aims to bring the family justice system in line with it.

Lawmakers are reviewing legislation on financial settlements after divorce

As well as reporting on surrogacy laws, the Law Commission of England and Wales is in the process of reviewing laws concerning the division of finances at the end of a marriage or civil partnership.

Current laws date back over half a century to the Matrimonial Causes Act 1973. In the case of civil partnership, this legislation is mirrored in the Civil Partnership Act 2004.

This legislation covers property, spousal or civil partner maintenance, child maintenance and the thorny question of how pensions are divided.

The government has asked the Law Commission to review whether this legislation is fit for purpose and whether it delivers "fair and consistent outcomes for divorcing couples".

It will look the system over from top to bottom and ask questions like:

• Should legislation be clearer? Does existing legislation lead to uncertainty among divorcing couples?
• Should courts have more powers to make orders for over-18s?
• Should a separating party's behaviour in the relationship play a role in a financial remedy order?
• Should pensions be divided along with other assets?
• Do spousal and civil partner maintenance payments and child maintenance payments need overhauling?

So there you have it – a roundup of the latest UK family law news. We'll keep you posted about any developments.

At Milners Law, we have teams of experienced, approachable family solicitors in Leeds, Harrogate and Pontefract. Looking for legal guidance? Please don't hesitate to contact us for a free, no-obligation consultation.