The number of parents having a baby using a surrogate in England and Wales has almost quadrupled in the last 10 years, according to a survey reported here by the BBC, writes Victoria Maxwell, a Solicitor in our Forming Families team.
In my experience there has recently been an increase since the beginning of the pandemic as lockdown provided a lot of us with time to reflect on our life goals and our wishes for the future. Certainly, other experts in the industry I have spoken to in the past 18 months have reported a sharp increase in enquiries being attributable to the pandemic. Many intended parents who have decided to embark on their surrogacy journeys recently have reported the slowed pace in lifestyle actually providing them with an opportunity to reflect, research and plan. Another reason why interest in domestic surrogacy in the UK may have recently increased is due to the restrictions on international travel. We have certainly noticed a downshift in international surrogacy arrangements in the past 18 months which is entirely understandable due to the forever changing restrictions on international travel with intended parents increasingly keen to try and enter into domestic surrogacy arrangements.
As the survey reveals Parental orders, which transfer legal parentage from the surrogate, rose from 117 in 2011 to 413 in 2020.
Two-thirds of applicants are now mixed-sex couples often in their 30s or 40s.
Surrogacy is an arrangement in which a woman carries and delivers a child for another person or couple. 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.
This is unlikely to solve the demand issue we have in the UK in terms of intended parents struggling to find a surrogate. Not only are surrogacy contracts unenforceable in the UK, it is illegal to advertise for a surrogate and it is illegal for third parties to profit from matching.
As the BBC article reports there are only four main non-profit organisations who match surrogates and intended parents and these organisations often have long waiting lists. As one of the non-profit organisations stated “We get around 100 enquiries a month from women who want to be surrogates and that’s risen considerably in the past few years, Unfortunately, there are still more intended parents looking for a match than we can help.”
The issues faced by intended parents in finding a surrogate in the UK can concerningly lead to them taking matters into their own hands and turning to sites such as Facebook to try and match informally with a surrogate which can be fraught with issues. Department of Health guidance said it does not generally recommend that those considering surrogacy do so independently on sites like Facebook, instead pointing to one of the four UK non-profit organisations.
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. We shall have to watch this space.
The above is accurate as at 23 September 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.