Health (Assisted Human Reproduction) Act 2024

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Approval of surrogacy agreements (SJ)

90. (1) Intending parents (or, in the case of a single intending parent, that intending parent) shall not participate in a surrogacy agreement (SJ) other than a surrogacy agreement (SJ) that has been approved under subsection (3).

(2) (a) Intending parents (or, in the case of a single intending parent, that intending parent) may make an application in the specified form (in this Part referred to as a “ section 90 application”), accompanied by the specified fee, to the AHRRA for the AHRRA’s approval under subsection (3) of the completed surrogacy agreement (SJ) attached to the application.

(b) Without prejudice to the generality of section 151 —

(i) the specified form of a surrogacy agreement (SJ) shall require, in the case of two intending parents, each of them to indicate that he or she understands that, should the agreement be approved under this section but he or she dies before the embryo transfer concerned has been effected, such approval will be treated as revoked from and including the date of death, and

(ii) the specified form of a section 90 application shall require—

(I) such evidence as is specified in the form as is reasonably required by the AHRRA to enable it to determine whether or not the provisions of sections 86 , 87 , 88 (2), 88 (3), paragraphs (b), (c), (d), (e) and (g) of section 89 (1) and paragraph (c) of section 92 (3) have been complied with, and

(II) if an intermediary is to be used, an estimate of the relevant fees referred to in section 97 (b).

(3) Subject to sections 112 and 113 , the AHRRA shall determine a section 90 application by—

(a) subject to subsection (4), giving notice in writing to the applicant approving the surrogacy agreement (SJ) attached to the application where the AHRRA is satisfied that—

(i) the surrogacy the subject of the agreement is a permitted international surrogacy, and

(ii) the agreement has been correctly (including accurately) completed and, without prejudice to the generality of the foregoing—

(I) the agreement contains a declaration by the surrogate mother and the intending parents (or, in the case of a single intending parent, that intending parent) that, to the best of their knowledge and belief, the surrogacy the subject of the agreement is a permitted international surrogacy, and

(II) subject to section 151 (4), the agreement has been signed by—

(A) the surrogate mother, and

(B) the intending parents (or, in the case of a single intending parent, that intending parent),

or

(b) in any other case, giving notice in writing to the applicant refusing to approve the surrogacy agreement (SJ) attached to the application and stating in the notice the reasons for such refusal.

(4) (a) Subject to paragraph (b), the approval under subsection (3) of a surrogacy agreement (SJ) shall expire when the period of two years has elapsed from the date of such approval.

(b) The AHRRA shall specify in the approval under subsection (3) of a surrogacy agreement (SJ) a shorter period than the two years referred to in paragraph (a) where that is necessary in order to ensure that a specified upper age limit is complied with.

(5) Where the AHRRA is minded to determine a section 90 application by refusing to approve the surrogacy agreement (SJ) attached to the application, it shall, in the interests of procedural fairness, give a notice in writing to the applicant stating—

(a) that the AHRRA is so minded and stating the reasons why the AHRRA is so minded, and

(b) that the applicant may, if the applicant wishes to do so, within the period specified in the notice (being a period reasonable in all the circumstances of the case) provide, in view of those reasons only, supplementary material in the specified form to the AHRRA for the AHRRA’s further consideration before making a determination under subsection (3) following the expiration of that period.

(6) For the avoidance of doubt, it is hereby declared that subsection (5) only applies once to the same section 90 application.

(7) In the case of two intending parents, should a surrogacy agreement (SJ) be approved under this section but an intending parent dies before the embryo transfer concerned has been effected, such approval shall, by virtue of this subsection, be treated as revoked from and including the date of death, and the other provisions of this Act shall be construed accordingly.