Hollie Orgee is a senior solicitor at Stowe Family Law and here she writes about surrogacy law in the UK.
BBC Three has launched a 3 part documentary called The Surrogates, following 5 would-be parents trying to find the right surrogate mother for their child, over an 18 month period. The series delves into the emotional highs and lows of the complex world of surrogacy in the UK, highlighting the increased use of this method of conception in recent years.
In 2018, the number of parental orders (i.e. applications made to the family court to be named legal parents) had trebled since 2011 from 121 to 386. In many cases, parents don’t necessarily formalise this legal agreement so there are likely many more babies born via surrogacy than the number recorded.
Surrogacy is an alternative conception method whereby a woman carries a baby on behalf of another couple or a single person either by using her egg or a donor. In recent years, the concept has gained popularity, having been put in the public eye by celebrities such as Kim Kardashian West. However, there are complexities in the law of surrogacy that need to be understood for those considering it.
Surrogacy law in the UK
While in the UK, surrogacy is legal, you are not allowed to pay a surrogate, meaning there are restrictions with regards to it being commercialised or advertised in any way. However, a surrogate is expected to have ‘reasonable expenses’ covered for her by the intended parents.
Surrogacy law in the UK is such that when a baby is born, the woman who gave birth (i.e., the surrogate) is registered as the child’s birth mother, irrespective of whether she is related biologically.
If the surrogate mother is married or in a civil partnership, the spouse is registered as the other legal guardian. As such, the intended parents have no legal right over the child at the time of birth.
To seek legal responsibility for the child, the intended parents need to apply for a parental order. This can’t be done any earlier than six weeks after the baby is born – this is the amount of time given by law for the surrogate mother to provide her formal consent.
Seeking a parental order can be a long-winded process as it can take 6 – 12 months to go through the family court. This can, for obvious reasons, be a challenging and vulnerable time for those involved. For the intended parents who have been looking after the child since birth but have no legal rights or responsibility for him/ her, it can be quite complicated.
Although we do not see this often, in some instances, parents have changed their mind during this time. There was a case in Australia that made headlines whereby parents went to Thailand for surrogacy but abandoned the baby born with Down Syndrome.
A change of heart can also come from the surrogate, who refuses to consent to a parental order being made and will not hand the baby over. In these instances, the family court does not have any power to make a parental order without the surrogate mother (and spouse’s) consent.
One way to help avoid these kinds of issues is by creating a surrogacy agreement although these are not legally binding. However, they help set out an arrangement that demonstrates what the intended parents and surrogate have agreed. The agreement should clarify the approach taken while also laying out key decisions regarding healthcare expenses and so on.
It is worth considering that these agreements cannot be enforced by UK law – they are based on trust, potentially leaving either party worried that their desires will not be fulfilled.
Time for change
It is high time for the UK legal system to offer more protection and clarity for intended parents and surrogates alike.
The US has a more secure system whereby a legally binding surrogacy agreement is put together before the process begins, laying out the respective legal positions, rights, roles and responsibilities during the pregnancy and post-birth.
A court process then follows whereby the intended parents are granted a parental order recognising that they are the legal parents from birth. This process provides parents and the surrogate with much-needed clarity from the outset, stripping the surrogate from any rights or obligations from the get-go.
While we have made progress in reforming some of the laws around surrogacy in the UK, we could learn a great deal from the US’ approach, especially as we continue to see surrogacy increase in popularity.
Some reform has been made in this area with a law change in 2019 when single applicants were granted the right to apply for a parental order. By making it possible for single parents to undertake surrogacy, we are at least moving in the right direction.
The government shortly thereafter undertook a consultation on surrogacy laws, providing more hope still for law reform in the UK. We expect the final report and recommendations for reform of the law and a draft Bill early next year. However, we will have to wait to see whether the proposed reforms go far enough.
Surrogacy is a fantastic option for couples and single people wanting to have babies but it is clear that UK law needs to catch up with technology to fit modern families’ choices.