By Hollie Orgee
Despite the numbers of parents having a child through surrogacy over the last decade increasing four-fold, this year, the number of surrogacies in the UK has fallen for the first time in five years.
Surrogacy as a method of becoming a parent seemingly gained popularity when the likes of Kim Kardashian and Elton John engaged a surrogate to complete their families. However, the significant fall in those following the surrogacy route over the last year hints at deep- rooted issues which cannot be overcome by looking to celebrities for inspiration.
The Law Commission opened an investigation into surrogacy laws back in 2019, with plans to announce its findings to the government next year. The legal structure around surrogacy is complex – there are many areas which need reviewing.
Surrogacy refers to the practice of a woman carrying and giving birth to a child for another couple either from her own egg and the sperm of the father or transferring embryos through IVF to the surrogate. Although surrogacy is legal in the UK, it is not permitted to be advertised or commercialized. In essence, this means that as a prospective parent, you cannot pay a woman to be your surrogate. You are permitted; however, to pay reasonable expenses to the surrogate.
Currently, the process is uncertain. Prospective parents and the surrogate have no legal obstacles in their way, but they also have very little protection under the law.
Under current legislation, when a baby is born, the woman who gave birth is the legal mother. If she is married or in a civil partnership, her partner will also take on the legal position of parent. This is the always the case despite the fact that the woman who birthed the child is not biologically related to the baby. What this means in reality is that the intended parents, who desired and initiated the surrogacy process, have no legal rights over the child when it is born.
The next stage for the intended parents is to apply for a parental order which would grant them parental responsibility and extinguish the surrogate (and her partners) legal rights. However, this can only happen if and when the surrogate mother has given formal consent, which must be at least six weeks after the birth. The process of going through the family court can be lengthy, sometimes taking six to twelve months.
Understandably, this can be a very nerve-wracking and tense time for both parties. Often those involved will feel highly vulnerable as their individual positions are precarious. The intended parents will care for the baby as soon as it is born, but they have no legal rights or parental responsibility.
There have, on occasions, been cases where one of the parties changes their mind. For example, there was a publicised case of an Australian couple who travelled to Thailand to find a surrogate but reportedly abandoned the baby because he was born with Downs Syndrome.
In other instances, it is the surrogate who changes her mind. The surrogate can refuse to give the baby up to its intended parents or can refuse to consent to a parental order. In this situation, the family court currently has no legal powers as it can only make a parental order for the biological parents with the formal agreement of the surrogate after the baby’s birth.
However, surrogacy agreements can be made, which outline from the start how both parties would like the arrangement to pan out. However, these are not legally binding and cannot be enforced by law.
All of this has led to calls for change. There is a strong argument that Brexit and the pandemic have created a stall in fertility treatments and disruption to travel, causing the fall in surrogacies in the last year. Nevertheless, the law currently offers little certainty for many people and can be off-putting.
Surrogacy laws are failing to keep up with modern family structures, and it is only since 2019 that the route has been opened up to single people. Meanwhile, gay couples have only been granted the right to become parents via surrogacy since 2010.
A couple in Yorkshire has recently spoken out about how the laws leave both parties too vulnerable and have called for the intended parents to be legalized as such immediately after the baby’s birth.
There is a clear need for update to the existing laws not only in surrogacy, but also in fertility as these issues are closely intertwined. In early December, Julia Chain, the new chairwoman of the Human Fertility and Embryology Authority, announced her plans to change rules around fertility treatment and access. She is seeking to make fundamental changes to the 1990 laws which still govern the fertility sector, and are failing to keep up with modern families and choices.
Chain wants to amend the Human Fertilization and Embryology Act to make it easier for same-sex couples, trans couples and singles to allow easier access to fertility treatments and expand the 14 day limit on using embryos for scientific research. Following the presentation to the Progress Educational Trust, there will hopefully be new legislation drafted by the end of the year. This is a huge movement towards supporting changing family structures and allowing different groups to access fertility treatment and achieve their dreams of a family.
In addition to this, the Law Commission is reviewing the Surrogacy Arrangements Act (1985). What they are likely to find is a set of rules which have serious and often damaging repercussions on the individuals involved. The laws, as above, whilst not ambiguous, are risky. The UK system fails to provide enough clarity and protection for surrogates and prospective parents.
The UK could learn something from the Surrogacy Laws in other countries, which provide much more clarity to those involved. In the US, for example, although it differs by state, legal protection is given to all parties involved. Before the process even begins, a Surrogacy Agreement is created, detailing the rights of individuals, their roles and responsibilities for the pregnancy and beyond. This agreement is legally binding, where the UK version (if it is done at all) is not.
In the US as with other countries, an order is then produced which guarantees the intended parents as the baby’s legal guardian from the moment the child is born. Further, it discharges any rights or obligations of the surrogate towards the child.
What the Law Commission may find, then, is that the UK needs to act fast to provide clarity and security for the surrogacy process. Now, more than ever, with advancements in technology, changes in modern families and the range of fertility options available, surrogacy laws need to catch up with modern family life.
Hollie Orgee is a Senior Solicitor at Stowe Family Law.
