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Monday, 10 June 2019

Building families through surrogacy: a new law A joint consultation paperOn 6 June 2019, the Law Commission of England and Wales and Scottish Law Commission published its Consultation Paper on "Building Families Through Surrogacy: A new law".

The Law Commission have attended a number of events run by Cambridge Family Law over the past 3 years, including the conference on Eastern and Western Perspectives on Surrogacy (with the University of Hong Kong, Hong Kong, August 2016), and the joint conference with the European Academy of Law on Law and Practice of Surrogacy (Cambridge, June, 2018). They will also attend the International Surrogacy Forum organised in collaboration with the International Academy of Family Lawyers (IAFL) and American Bar Association in June 2019.

In its Consultation Paper, the Law Commission cites the work of Claire Fenton-Glynn and Jens Scherpe, and in particular, their new book on "Eastern and Western Perspectives on Surrogacy" (Scherpe, Fenton-Glynn and Kaan (eds), Intersentia 2019). The Law Commission cited with approval the conclusions of Fenton-Glynn and Scherpe that the current system "undermines the rule of law", and that "While the elevation of the child’s welfare to the paramount concern is laudable, it has undermined the ability of the courts to refuse a parental order."

The Commission also picked up the characterisation of Fenton-Glynn that English law "does not view commercial surrogacy as an intrinsic wrong", seeing it instead as a contextual wrong, which is only problematic if the conditions in which it is carried out are not subject to control. To remedy this problem, the Law Commission has recommended moving to a pre-birth approval process, which is in line with Fenton-Glynn and Scherpe's writing on this subject.

Other works by Cambridge Family Law cited by the Law Commission Consultation Paper include: