Surrogacy has been hitting the headlines again and again over the past few years. As an alternative route to parenthood, it has been gaining popularity and, as a result of various celebrities like Kim Kardashian and Elton John using the surrogacy method to complete their families, it has been splashed across the media.
Made in Chelsea star, Ollie Locke, has been documenting his surrogacy journey on Instagram. With his husband Gareth, Locke has been trying for a baby with a surrogate. Just before the New Year, Locke shared that the surrogate had miscarried at six weeks. As part of his post, Locke described the difficulties of the surrogacy process and the deeply engrained archaic laws surrounding surrogacy.
As a same-sex couple, Locke and his husband have faced serious obstacles in their parenthood journey which highlight how outdated our rules are. In his post, he declared that “As we move forward I will promise I will do everything in my power to try and bring attention to help in changing the British laws to make it easier for people desperately trying to have a family!”
Locke is not alone in this. Although the number of new parents using surrogacy to have a child over the last decade has increased four-fold, 2021 saw a dip for the first time in five years in the UK. Much of this is due to the deep-rooted issues in the surrogacy laws, particularly for same-sex couples. Locke and his husband’s surrogacy journey reflects the struggles many couples are going through because of the law, and, unfortunately, these cannot be solved by looking to celebrities for inspiration and comfort.
Surrogacy is when a woman carries, and gives birth to, a child for a couple who are (usually) unable to have children themselves, from her own egg and the sperm of the father, known as traditional surrogacy. Alternatively, embryos can be transferred to the surrogate via IVF, which is known as gestational surrogacy.
UK surrogacy laws
Surrogacy is completely legal in the UK, but it cannot be advertised or commercialised; in other words, you cannot pay your surrogate, except for such expenses as may be deemed reasonable.
The process of surrogacy, and the laws surrounding it, are unsatisfactory, leaving prospective parents and the surrogate alike uncertain about their positions and responsibilities. The law as it stands does permit same-sex couples the legal rights and support that opposite sex couples have, as well as single prospective parents. However, this does not afford any party much by way of legal protection.
Surrogacy is a complex process that can often leave the various parties feeling vulnerable and stressed. Surrogacy law in the UK means that when the surrogate gives birth, she is automatically registered as the child’s birth mother, despite the fact she will not, in many cases, be biologically related to the child.
In such cases where the surrogate mother is married or in a civil partnership, her spouse or civil partner is then registered as the baby’s second legal parent. Therefore, the intended parents themselves end up having no legal rights, or parental responsibility for the child at the time of birth.
To become legal parents, the intended parents need to apply for a parental order. This can only be done after the baby is six weeks old: the allotted time given under the law for the surrogate to provide her formal consent to the intended parents making the application to assume legal responsibility.
This process, however, can be long-winded and stressful. It can take around 6 to 12 months to make its way through the family court. In most cases, the intended parents will have been taking care of their baby since the birth, but until they receive the parental order, they have no legal rights or responsibilities, so matters can easily become complicated
In some instances, the surrogate can have a change of heart and refuse to consent to the parental order. The family court has no power in such circumstances; they cannot make a parental order without formal consent from the surrogate, and her spouse or civil partner if she has one. Making a surrogacy agreement in the earliest stages can help to mitigate the risk of such issues. These tend to lay out the arrangement between the intended parents and the surrogate and clarify the approach taken, as well as the planned responses to important decisions, such as medical issues and healthcare expenses. However, surrogacy agreements are not legally binding in the UK, so cannot be enforced by the law. They are based solely on trust. The biggest issue facing intended parents is that should they disagree with the surrogate over any course of medical treatment during the pregnancy, that ultimately the surrogate’s wishes will override any previous agreement reached.
What needs to change?
Surrogacy laws are in desperate need of updating. In 2019, the Law Commission opened an investigation into the surrogacy laws and with an expectation to produce a plan for reform of the law in autumn this year. In the same year, a small step was made, in the ability of the courts to grant parental orders to single applicants, meaning solo parents can go down the surrogacy route.
However, more needs to be done.
The journey to parenthood is rarely straightforward, but the law should be working towards a fairer surrogacy system which is comfortable and easier to manage for both the parties involved, and the UK family courts.
Other countries, such as the US, have a more secure system in place, whereby the surrogacy agreement is legally binding, having been set out before the process begins. The agreement will lay out the legal positions, rights, roles and responsibilities for both parties during the pregnancy and after the baby’s birth.
Intended parents are then granted a parental order via a court process, recognising their legal parentage right from birth. This provides both parties the clarity needed from the beginning, keeping vulnerability to a minimum.
The UK could learn a great deal from this approach to make bigger steps towards surrogacy laws fitting with modern family life. The seeds of change are being sown, and the results cannot come soon enough.
Hollie Orgee is a senior solicitor at Stowe Family Law.