Surrogacy is an arrangement in which a woman carries and delivers a child for another person or couple, writes Victoria Maxwell, a Solicitor in our Forming Families team.
The woman birthing the child is called the ‘surrogate mother’. The parent or parents for whom the child is intended are called the commissioning or intended parents.
There are two general models of surrogacy arrangement:
- Using the egg of the surrogate mother and the sperm of the intended father – sometimes called traditional, partial or straight surrogacy, and
- Using the egg of the intended mother (or else of a donor) combined with the sperm of the intended father (or donor sperm) – sometimes called gestational, full or host surrogacy.
Traditional surrogacy may be carried out at an IVF clinic, or by artificial insemination. A child born through traditional surrogacy will be biologically related to the intended father and the surrogate mother.
An IVF clinic is always required for host surrogacy. A child born through host surrogacy will not be biologically related to the surrogate mother.
Surrogacy is also a popular option for same sex couples and initial considerations will include who will be biologically linked to the child and what type of surrogacy will be used.
As the law stands the surrogate, regardless of whose eggs are used, is always the legal mother. If the surrogate mother is married, her husband is also likely to be considered the legal father under English Law. This clearly does not reflect the intentions of the parties to a surrogacy arrangement. At present intended parents have to make an application to court within 6 months of the child’s birth for a parental order.
A parental order transfers the legal parentage from the surrogate mother (and her husband if she has one) to the intended parents. There are various other countries around the world where surrogacy has been a regulated and recognised process for some time and they tend to have more streamline legal frameworks for the intended parents compared to the UK. For instance, various states in the US have “pre-birth orders” which transfers the legal parentage from the surrogate mother to the intended parents before the birth. The surrogate is also the subject of vigorous screening which reduces the possibility of complications with the arrangement or any risk of exploitation.
There is certainly a feeling amongst professionals in the field that the UK’s approach to surrogacy is outdated and not in keeping with modern family values. To address this the Law Commission carried out a full consultation on surrogacy, which ended last year and is expected to produce a final report with law reform recommendations and updated laws being introduced in 2022.
From my research it sounds as if the likely changes to be implemented will mainly affect domestic surrogacy arrangements and make the process more streamlined.
This is unlikely to solve the demand issue we have in the UK in terms of intended parents struggling to find a surrogate and the fact that surrogacy contracts in themselves are unenforceable in the UK.
The majority of my clients opt for overseas surrogacy and it appears that the proposed changes to the law will mean that intended parents who enter into overseas arrangements will still need to go through the same court process of two hearings. This is due to the public policy concerns involved with overseas surrogacy depending on the jurisdiction and the level of regulation where the agreement takes place.
The public policy concerns are risk of exploitation to the surrogate but also to all parties. From my experience the intended parents can be just as vulnerable when entering into agreements in countries where surrogacy may not have any regulation whatsoever.
Parliament has a difficult task in my opinion as there will be a large degree of balance required to implement changes that make the process easier for all those involved, however, at the same time ensuring that public policy concerns are not overlooked.
The above is accurate as at 24 August 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.