Despite some of the legal and ethical complexities that exist around it, surrogacy is on the rise, both in Britain and internationally.
Demand is strong - and growing fast. While many countries don’t formally record the number of children born via surrogacy, at least 2,200 surrogate babies were born via this method in America in 2014 – more than twice the number born in 2007. One large Indian clinic frequented by foreign couples claimed to have delivered more than 1,000 babies via surrogacy between 2004 and 2015. Britain registered nearly 400 babies born this way in 2016 – 8 times more than were born in 2007.
The lack of official statistics around surrogacy reflects the lack of formal regulation that it faces in much of the world. Some countries, such as France, Germany, Italy and Spain ban it entirely, whilst others like India, Russia and Mexico allow it. In places like the US and Australia, regional variations exist, with different laws applying in different federal states.
The UK, where surrogacy is legal, is one of just a handful of jurisdictions where it is governed by clear, though restrictive, rules. However while UK surrogacy laws may be clear, we believe this is an area that needs reforming.
UK surrogacy laws in need of reform
There are two main issues that we believe need addressing about surrogacy laws in the UK.
The first is that, in the UK, the woman who gives birth to the child is considered the legal mother, whether she is biologically related to the child or not. If she is married, her spouse is recognised as the child’s second legal parent.
The second related issue is that the intended parents, even if they are the biological parents, are not recognised as the child’s legal parents from birth. After a surrogate mother has given birth, the intended parents must make an application to the Family court to become the baby’s legal parents.
They will have to apply to a UK Court for a Parental Order. This removes the status of the surrogate (and her spouse) as the parents of the child and reassigns legal parenthood and parental responsibility to the intended parents.
In the eyes of the law, any written agreements between the intended parents and the surrogate are not enforceable. As the legal issues surrounding parenthood can only be resolved after the baby is born, it means that the entire process, up to and including after the birth, must be done on trust alone which leaves the intended parents in a vulnerable position until then.
How apply for a parental order
To get a parental order, the intended parents need to apply to the Family Court once the baby is born. They also must meet other criteria for the Court to be satisfied. These include:
- Currently, they need to be married, in a civil partnership or living together in an enduring family relationship to apply. However, given recent case law it is hopeful that this will change shortly and that single parents will also become eligible to apply.
- One, or both, of the intended parents must be domiciled in England and Wales – “domicile” is a particularly complex area of the law. If one or both of the intended parents aren’t able to satisfy this criteria, then legal advice should be sought.
- The surrogate must unconditionally agree to the parental order. If the surrogate is married, their spouse must also consent.
There are also other criteria that must be met, including rules about payment to the surrogate, a genetic link to the intended parents and the limited timeframe in which the parental order application can be made. These are all details which we can help with.
If the intended parents are unable to satisfy all of the criteria, and therefore cannot apply for a parental order, they might want to consider an adoption order, although the process for this is also complicated. Intended parents could also consider a child arrangements order, or a special guardianship order, but these do not reassign parenthood.
If you’d like to discuss surrogacy or applying for a parental order, or an alternative, please get in touch with the Clarion Family Team.
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