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Delays to surrogacy law reform creating risk for babies

Comment & OpinionDelays to surrogacy law reform creating risk for babies

Surrogacy is on the rise. Ministry of Justice statistics highlight a peak of 444 parental orders were made in 2019 and 435 in 2021 compared to 117 in 2011. Yet, surrogacy is still governed by legal concepts that fail to grapple with the changing faces and make-ups of modern families. As Lady Hale observed “UK law on surrogacy is fragmented and in some ways obscure.”[1] Below, we examine the current state of the law and look forward to what changes to this landscape might look like.

By Andrew Powell & Lucy Logan Green, barristers at 4PB

Before starting to consider the state of surrogacy law in England & Wales, a grasp of the fundamental pillars of families, who forms them and what defines them is essential.

Who is a parent?

Anyone reading this question may assume it is a simple one to answer, but as life, society and culture changes, so does our answer to this fundamental question. English law divided ‘natural’ parenthood into three categories in the seminal case of Re G[2] which came before the House of Lords in 2006. First, ‘genetic parenthood’ – the provision of gametes which produce the child. Second, ‘gestational parenthood’, meaning the conceiving and bearing of the child. And third, ‘social and psychological parenthood’, namely the relationship that develops through caring for the child, both by providing for their basic needs and by loving, nurturing, comforting, educating and protecting them. Someone could fall into just one, two or all three categories. Each is no more important than the other, nor is the claim of parenthood made more powerful by belonging to more than one of the groups.

The question of who is a ‘natural’ parent falls to be considered separately from who is a ‘legal’ parent. A child can only have up to two legal parents at any one time.

Parental responsibility exists separately from legal parenthood. Parental responsibility confers the ability to make all of the day-to-day parenting decisions for a child, whether you are the legal parent or not.

What is surrogacy and what is a surrogacy arrangement?

Surrogacy is when a woman carries and gives birth to a baby for another person or couple. In England & Wales, surrogacy arrangements are not enforceable and commercial surrogacy arrangements are strictly prohibited and constitute a criminal offence.[3]

This differs from the approach taken in other jurisdictions, notably some states in the USA, where commercial arrangements are the norm. Accordingly, going abroad to enter into a commercial surrogacy arrangement is a popular option for parents seeking the security of an enforceable arrangement.

This is not the only reason why looking abroad is a popular option.  Legal certainty is often a key aspect which intended parent(s) seek. Surrogacy laws in other jurisdictions differ vastly from those in England & Wales, often providing for intended parents to have legal status as ‘parents’ from the child’s birth.

Surrogacy law in England & Wales

Under English law, the woman who gives birth to the child is always regarded as the child’s mother (even if she is a gestational surrogate). Regardless of legal orders or judgments obtained in the jurisdiction of birth, the birth mother is always seen as the legal mother under English law. If the surrogate is married, her husband is the legal father.

The only way for intended parents to acquire legal status in this jurisdiction is by obtaining a parental order – a bespoke order that confers legal parenthood and parental responsibility  on the intended parents and extinguishes the surrogate’s legal ties to the child. Parental orders are meant to reflect the intended state of affairs.

There are a number of criteria that must be satisfied  to obtain a parental order.[4] Some cases have already sought successfully to challenge these rigid criteria. In particular, English courts may make parental orders out of time[5] and may make an order where there is just one intended parent,[6] both of which scenarios were not originally legislated for. Increasingly, courts have to “read down” a statute in order to account for different situations, not least what to do if the intended parents are no longer in a relationship when they apply for the parental order or an intended parent dies.[7]

Reform – what is needed?

 In 2018, the Law Commission announced that it would conduct a review of surrogacy laws with the Law Commissioner observing that the current laws “are not fit for purpose”. Below, we outline the areas widely considered ripe for reform.

  1. Parental orders vs pre-birth orders

Both surrogates and intended parents tend to identify the parental order matrix as the most problematic aspect of our current law. Surrogates and intended parents would like the child born of the surrogacy arrangement to be the child of the intended parents from birth, as opposed to waiting for legal parenthood to be transferred upon the court making a parental order.

The delay in the transfer can cause real issues for intended parents, who have the full-time care of the child but not the legal status to make decisions for them. An obvious real-life example of this issue arises if the child is ill and requires medical treatment for which parental consent is required. The surrogate (who is still the legal parent for some 6-12 months after the birth until a parental order is made) may live in a different jurisdiction and/or there may not be ongoing contact between her and the intended parents.

A pre-birth order would safeguard the surrogacy arrangement for both sides and more importantly, reflect from birth the reality for the child – that the intended parents are the parents. This psycho-social element is sometimes underestimated, but the importance that the child is “born into” their family rather than “brought into” it by a parental order is a meaningful and emblematic factor for parents and children alike.

  1. A surrogacy regulator

There is currently no regulator at all for surrogacy in this jurisdiction. A regulator for surrogacy and the creation of regulated surrogacy organisations should be created to oversee all surrogacy agreements and arrangements for intended parents living in this jurisdiction, whether the child is born here or not. This will not only provide a much-needed public resource for parents seeking accurate information about the process but will also provide greater security and safeguards around arrangements.

  1. Clarity around international surrogacy

An often-encountered issue for international surrogacy arrangements is the lack of information available to parents around immigration issues and nationality post birth. There must be some form of unified guidance on these issues and provision for recognition of legal parenthood across borders. This would prevent a child being left for long periods in a foreign country whilst waiting for a passport/ travel documentation for entry into the UK. One possible solution, though unlikely to be proposed by the Law Commission, would be a designated list of countries approved by the Home Office which would automatically recognise intended parents as parents in this jurisdiction.  This approach is used for recognition in some adoption cases where the list of countries can be reviewed.

The Law Commission Report

The Report is expected this spring with a draft bill. The summary already available reveals the proposal of a new legal pathway to introduce more rigorous safeguards before the child is conceived as well as recognising intended parents at birth as parents if certain criteria are met. There is a recognition that scrutiny of surrogacy arrangements should take place prior to conception rather than after the child is born – a much-needed and anticipated change to our current position.

 Andrew Powell & Lucy Logan Green, barristers at 4PB

[1] Whittington Hospital NHS Trust v XX [2020] UKSC 14

[2] Re G (Children) (Residence: Same Sex Partner) [2006] UKHL 43

[3] Surrogacy Arrangements Act 1985, section 2

[4] See Human Fertilisation and Embryology Act 2008, section 54

[5] See Re X (A Child) (Surrogacy: Time Limit) [2014] EWHC 3135 (Fam) and X v Z  (Parental order adult) [2022] EWFC 26

[6] Re Z (A child: No 2) [2016] EWHC 1191 (Fam) and then HFEA 2008 s.54A

[7] See Re A (Surrogacy: s54 criteria) [2020] EWHC  1426 (Fam) and  Re X (Foreign surrogacy; Death of an intended parent)  [2022] EWFC 34.

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