Five key questions for those considering surrogacy

Surrogacy is on the rise in the UK. Whether that is due to greater public awareness of the surrogacy option as a result of high-profile surrogacy stories such as those of Naomi Campbell, Robbie Williams and Tom Daley is uncertain, but applications for parental orders, which are required to make the intended parents of the child who is born to the surrogate their legal parents, have increased in England and Wales from 67 in 2008 to 280 in 2018. These numbers are expected to rise further following the Law Commission’s report into this area, due in Autumn 2022.

The key legislation governing the procedure is contained in the Surrogacy Arrangements Act 1985 and certain provisions of the Human Fertilisation and Embryology Act 2008. Although relatively new law, it is already outdated and seen by many as not fit for purpose. The courts of England and Wales have been willing to take creative approaches when dealing with individual cases to try and ensure the needs of all parties involved are met, but they are effectively plugging the gaps left by the legislation which leads to a significant degree of uncertainty for intended parents. The Law Commission, recognising the need for urgent reform, launched a consultation in 2019 and is due to publish its final report, with recommendations for reform of the law and a draft Bill, in Autumn 2022. But until such time as the law is reformed, it is important for anybody considering surrogacy to have a clear understanding of the current and complex laws that govern it. With that in mind, we have set out some points for intended parents to consider at the outset of their surrogacy journey.

1. Do you understand the law from the outset?

Although surrogacy is legal in England and Wales, there are strict laws that govern it and if you fall foul of these, you may be committing a criminal offence. This includes if you were to advertise that you are looking for a surrogate. It is therefore essential that you are fully informed from the start.

2. What is your agreement with the surrogate?

Think carefully about the agreement that will govern the relationship between you and the surrogate and be aware that the court should not make a parental order if this agreement is commercial, rather than altruistic. This means that no money or other benefits can be exchanged, other than the repayment of the surrogate’s reasonable expenses.

The court will sometimes overlook the rules where intended parents have broken them with regard to the payments they have made to the surrogate, for example, where the surrogacy has taken place in a country where commercial agreements are legal, if it is in the child’s welfare interests to do so. However, the courts’ willingness to exercise its discretion should not be taken as giving intended parents free rein to make payments to the surrogate.

3. Have you adhered to all of the other requirements of obtaining a parental order?

Without a parental order in place, the surrogate, and potentially her spouse, will automatically be the child’s legal parent from birth, even if they are not genetically related. This will mean that the intended parents cannot do things like take the child abroad or make decisions about their educational and medical needs. It will also mean that the child has no long-term security. It is therefore a good idea to read and understand this criterion from the beginning of your surrogacy journey.

4. Do you know your time limits?

Once the baby is born to the surrogate, the intended parents have six months to apply for a parental order.

Saying that, the courts have previously exercised their discretion in this area and made parental orders significantly after this deadline. This is because they recognise the importance of a parental order to the child and have assumed that Parliament, when passing the legislation, intended that there would be a sensible result.

5. Are you engaging in international surrogacy?

If you are engaging in international surrogacy, you need to consider the law of the country (or countries) where the embryo will be created and transferred, where the child will be born and where the child will reside.

There are no international agreements which govern surrogacy law and you therefore need to carefully consider the laws and guidance of any other countries involved as it is likely that these will differ from English law. Due to the potential for immigration issues to arise when bringing a child into England (or removing them from their birth country), it is also vital to consult an immigration specialist to ensure you properly confirm with the immigration laws of the child’s birth country and intended home country.