What is surrogacy?

Our Family Law team explore the topic of surrogacy and the call for legal reform to bring change to those looking to become parents in this way.

Surrogacy is where a person carries and gives birth to a child for a couple or individual who are unable to conceive or carry a child themselves.

The intended parents could be a same-sex couple, different-sex couple, or individuals regardless of their relationship status.

Traditional surrogacy involves the artificial insemination of a surrogate with the intended father’s sperm (using the surrogate’s eggs). Modern surrogacy often involves embryos created in a fertility clinic with the intended parents’ eggs and sperm (or with donated eggs), which are transferred to a surrogate who carries a child not biologically theirs.

The number of surrogate children in the UK is growing year on year, with an estimate of 500+ born per year to UK parents. However, the UK law around surrogacy is outdated and is in need of reform. The Surrogacy Arrangements Act 1985 and The Human Fertilisation and Embryo Act 1990 were passed when surrogacy was uncommon. This has led to surrogacy arrangements being made informally and at risk of exploitation, dishonesty and disputes without any legal remedy.  A knock-on effect of this is that there is a shortage of UK surrogates – this has led some intended parents to look for international surrogacy which comes with its own set of complications and risks.

Presently, intended parents can only apply to the court to be registered as the legal parents of their child after they have been born, by way of applying to court for a Parental Order.  This process is restrictive and can take many months. The surrogate is the legal parent until that point and the intended parents have no legal responsibility for their child during proceedings. They are therefore unable to make any decisions in respect of their child, i.e. regarding medical treatment. The current legislation cannot adequately deal with the modern realities of surrogacy and building of diverse families.

The Law Commission has reviewed these laws and in March 2023 published detailed reforms on how the government could improve the outdated surrogacy laws. This report outlines a new regulatory regime that offers more clarity, safeguards and support – for the child, surrogate and parents who will raise the child.

Under the reforms, a new system governing surrogacy agreements would come into force (the new Pathway to Parenthood), introducing a route for surrogacy where scrutiny of arrangements starts pre-conception.

This includes:

1. Medical screening of surrogate and intended parents
2. Assessment of the welfare of the child
3. Implications counselling
4. Enhanced DBS checks
5. Independent legal advice
6. Regulated Surrogacy Statement

Non-profit organisations, operating under a regulatory body, would ensure these rigorous pre-conception screening and safeguarding procedures are completed. If the right criteria is met, this would allow the intended parents to become the legal parents of the child from birth (subject to the surrogate’s right to withdraw their consent) without the need to apply to court.

The criteria would be:

1. The surrogate must be at least 21 years old.
2. The intended parents must be at least 18 years old.
3. At least one of the intended parents must have a genetic link to the child.
4. Where there are two intended parents, they must be married, in a civil partnership, or living as partners in an enduring family relationship.
5. At least one of the intended parents, and the surrogate, must meet a test of connection with the UK (domicile/habitual residence) at the time their surrogacy agreement is admitted onto the new pathway, and when the child is born.

The surrogate could withdraw their consent to relinquish legal parental responsibility, although it rarely occurs.  What happens next would depend on when the surrogate withdraws their consent:

1. Before birth: the new pathway can no longer proceed, and the surrogate would be the legal parent at birth.  The intended parents would need to pursue a parental order after birth to obtain legal parenthood.
2. After birth:  the new pathway ensures that the intended parents are the legal parents from birth, and the surrogate would need to apply to the court for a parental order within six weeks of birth.

Another key point would be the introduction of a surrogacy register, which would allow for children to trace their birth origins should they wish to.  The Law Commission’s reforms promote a regulated surrogacy regime that would work in the best interests of all involved, and dissuade intended parents from opting for international surrogacy agreements.

The Law Commission’s recommendations and draft legislation are currently with the government for review and consideration.  It is certainly a big step in the right direction for meeting the needs of families with safety and welfare at the very heart of it.

How we can help

If you should have any legal queries about surrogacy and parenting, either as a surrogate or an intended parent, please contact our Family Law team on 01603 620508 or email.

We offer an initial consultation at a fixed fee followed with a letter of advice, and we can also further assist in applying to court for a Parental Order.