The Law on Surrogacy Could Be Changing

20 November 2018

Over recent years surrogacy has been becoming an increasingly popular option in the UK for would-be parents. Now there's talk of making changes to the law on surrogacy, which could make the legal process of having a baby via surrogacy more secure and straight forward for all involved.

The Rise in Popularity of Surrogacy

Between 2006 and 2016, the number of parents having a child through surrogacy has increased by more than a five times. Figures from the Ministry of Justice show that the number of applications submitted to transfer parental responsibility of a child from a surrogate to the intended parents rose from 55 to 316.

The increasing popularity of surrogacy could be down to a number of factors. It may have something to do with the significant medical advancements that have been made around surrogacy and it could also be partly down to a shift in society's attitude towards alternative family arrangements and surrogacy. The topic has been propelled into the public sphere with surrogacy storylines featured in soaps and high profile celebrities such as Nicole Kidman and Elton John having children via surrogacy.

Surrogacy Laws and Parental Responsibility

Under the current law in England and Wales, a woman will automatically be granted parental responsibility over a child that she gives birth to. A second parent can then be granted parental responsibility either by being named on the birth certificate or by being married to or in a civil partnership with the mother.

This means that, in order for the child's intended parents to legally obtain parental responsibility for the child, they will need to submit a Parental Order application to the Court. The Court will then review the application and, if approved, will transfer parental responsibility from the birth mother to the intended parents. This process can take months to complete.

The current surrogacy laws that are in force in the UK are set out in the Surrogacy Arrangements Act 1985 and the Human Fertilisation and Embryology Act 2008. It has been widely acknowledged that these laws are outdated, impractical and out of step with current practice.

Under these current laws, the arrangements between the surrogate and the intended parents are not legally enforceable. This means that the intended parents have no legal right over the child until the Court has transferred parental responsibility to them, and if the surrogate changes her mind then there is nothing they can do about this. Furthermore, it is a criminal offence for a Lawyer or a Solicitor to draft any legal agreement to the contrary.

A Parental Order application cannot be made to the Court until the child is 6 weeks old, and the process of transferring parental responsibility can then take time, leaving the child in limbo. While the child may already live with their intended parents during this time, the fact that the child is not legally recognised as theirs can cause significant complications.

The current law also prohibits single people from having a child via surrogacy, stating that the intended parents need to be either married, in a civil partnership or in an enduring family relationship.

Acknowledging the need for reform, the Law Commission opened a consultation in 2017 where it asked for people's views on how these laws should be reformed. We are now awaiting an update from the Government on the proposed changes.

Ensuring the Welfare of the Child

Acting within such stringent and outdated parameters around surrogacy has proven challenging for Family Law Judges in the courts, with many having to stretch the rules to ensure the best outcome for the child.

The Court will always hold the welfare of the child to be of paramount importance when considering their decision in any children matter. It has been suggested that the rigid surrogacy laws that are currently in place may hinder rather than help the Judges in this regard, with stressful, lengthy Court processes which fail to provide adequate protection for the child, the surrogate or the intended parents.

We will monitor with interest as the Government releases their plans on how they plan to reform surrogacy laws, and we'll provide further updates as and when these develop.

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