Anyone watching the recent BBC 3 series ‘The Surrogates’ might be forgiven for thinking that surrogacy is a common way to form a family. In fact as the BBC reported in this article in 2019 in the UK the number of parental orders made following a surrogate birth tripled from 121 in 2011 to 368 in 2018, however these numbers are still very low.
Technological advances such as IVF, softening of cultural attitudes and the trend for having children later have fuelled a rise in surrogacy in the past decade. Not everyone manages or is able to conceive and same sex couples may have to choose different options to create their family. The legal issues surrounding forming families can be complicated and require sensitive and specialist handling.
How does surrogacy work?
There are two types of surrogacy, as explained on the Human Fertilisation and Embryology Authority’s helpful website:
Full surrogacy (also known as host or gestational surrogacy) is when the eggs of the intended mother or a donor are used and there is therefore no genetic connection between the baby and the surrogate.
Partial surrogacy (also known as straight or traditional surrogacy) involves the surrogate’s egg being fertilised with the sperm of the intended father. If you go down this route in the UK, we recommend you have treatment at a licensed UK fertility clinic.
Here in the UK surrogacy is legal provided it is altruistic. Surrogate mothers cannot receive payment or other benefit from the intended parents. However, they can claim ‘reasonable pregnancy-related expenses’ incurred because of pregnancy and birth, such as loss of earnings and maternity clothes etc.
Often the process will be outlined in a surrogacy agreement, which establishes the terms of the arrangement (many clinics require an agreement to be in place before offering treatment). However, these agreements are not enforceable in the UK and lawyers are prohibited from drafting one for commercial gain.
The surrogacy process can be complicated, and as demonstrated in The Surrogates, although fortunately incredibly rare, a surrogate mother can refuse to give up the child at birth. If that were to happen in the UK, the intended parents cannot take any steps to enforce what was previously agreed contractually and there will likely be a bitter court battle to determine what would be in the child’s best interests. The surrogate is therefore not the only vulnerable party, the intended parents can be too.
The Law Commission
Many people contemplating surrogacy do not realise the intended parents do not automatically become the legal parents of the child after birth. UK law provides that the legal parents of a child are the surrogate mother and her spouse/civil partner if she has one (unless his/her consent was not given to the process). Intended parents must apply to the Family Court for a parental order, enabling the legal parentage to be transferred from the surrogate mother to the intended parents.
The legal process currently involves two hearings and a rather invasive process for the intended parents to be recognised as the legal parents of their much-wanted child, who will usually have a link to at least one of the parents. The law as it stands leaves all parties vulnerable due to the unenforceability of surrogacy contracts in the UK and the window of opportunity for the surrogate mother to change her mind (fortunately it is extremely rare, but it does happen).
Surrogacy laws are currently under review by the Law Commission of England and Wales and the Scottish Law Commission, and a draft bill should be available in early 2022.
The key proposals being considered are creating a new surrogacy pathway to allow the intended parents to become the child’s legal parents from the moment of birth. Introducing a specific regulation for surrogacy arrangements and safeguards such as counselling and independent legal advice and allowing international surrogacy arrangements to be recognised here on a country-by-country basis.
I think the Law Commission recommendations hint towards a much needed and welcome change. I hope that whatever changes are brought into force they make the process much more straightforward for families relying on surrogacy and provide all parties with more certainty.
Our specialist Forming Families team has a strong track record in achieving the best results for our clients. While every case is unique, all share one common feature – the need for sound advice and careful guidance. Whatever the issue, there is a solution to help you and your family.
The above is accurate as at 01 June 2021. The information above may be subject to change during these ever-changing times.
The content of this note should not be considered legal advice and each matter should be considered on a case-by-case basis.