Surrogacy – your questions answered

The concept of surrogacy has historically been seen as a taboo subject. As a result, it is not surprising that many may be unfamiliar with the process and the legal implications in this jurisdiction.

With the ever increasing role surrogacy plays in modern families and its growth in popularity, particularly in recent times, we seek to address below some of the questions you might have about the process.

What is surrogacy?

Surrogacy has been defined as “the practice whereby one woman carries a child with the intention that the child should be handed over at birth”. It is important to distinguish that there are two types of surrogacy:

1. Traditional (or partial) surrogacy – this is where the surrogate mother’s egg is used with the sperm of the intended father. This means that the surrogate mother is genetically related to the child.
2. Gestational (or total) surrogacy – this is where the surrogate mother has no genetic link to the child. The genetic elements of the embryo can be comprised of various combinations, such as both a donor egg and donor sperm, or one part the donor and the other from the intended parents.

Is surrogacy legal in England and Wales?

The short answer is yes, it is. However, there is a distinction between commercial surrogacy and what some refer to as altruistic surrogacy.

• Commercial surrogacy involves the surrogate mother being paid (sometimes significantly) for her role in a surrogacy arrangement and would usually involve some form of surrogacy contract. This is what many may understand surrogacy is and this form is popular in many jurisdictions including the US and South America; however commercial surrogacy is not legal in this country as payments to a surrogate mother (other than towards her reasonable expenses) are prohibited in England and Wales.
• Altruistic surrogacy on the other hand is the opposite; the surrogate mother is not paid and there would not usually be a contract between the surrogate mother and the intended parents. This closer resembles the form of surrogacy law in England and Wales. In fact, the law in this jurisdiction goes further so as to say that surrogacy arrangements are not enforceable and advertising of surrogacy services is prohibited.

What is the surrogacy process in England and Wales?

The starting point is that the surrogate mother is the legal mother regardless of whether she is genetically linked to the child or not. Further, if the surrogate mother is married to a man, her husband will be the legal father of the child provided the Court is satisfied that he agreed to the process taking place. It will only be once the Court grants a parental order that the legal parentage would change.

The parental order is far reaching in its scope as it changes the legal parentage of the child and severs the links of the child to any other parents, such as to the surrogate mother. There are various requirements which need to be met for a parental order to be granted. One such requirement is that the applicant or one of the applicants must be genetically linked to the child. Most importantly, however, the surrogate mother must have freely, and with full understanding of what is involved, agreed unconditionally to the making of the order. This means, it is possible for a surrogate mother to refuse her consent to the order being granted.

When can applicants apply for the parental order?

It is worth bearing in mind that the consent of the surrogate mother cannot be provided less than six weeks after the child is born. That being said, there is a requirement that the application for the order must be made within six months from the child’s birth (although there are cases where this time limit has been extended). Regardless, it is key to ensure that the process is commenced as soon as possible to minimise potential issues.

Why is surrogacy in England and Wales still so rare?

Both practitioners and parents have identified several difficulties with the current surrogacy laws, which are considered by many to be outdated. These are supported by a Law Commission consultation paper which was published in 2019.  One of the key recurring themes is the lack of certainty. The central difficulty with the current law is that the intended parents are not automatically the child’s legal parents from birth. This can add considerable worry to parties going through a process which is already emotionally and financially burdensome.

In response to this issue, one of the proposals suggested by the Law Commission was that intended parents should be considered to be legal parents from birth unless the surrogate mother objects. This would be a welcome shift away from the burden falling on the intended parents to ensure that the surrogate mother providers her explicit consent.

Lack of certainty is just one of the pitfalls with the current law, which may provide some explanation as to why the process is still relatively underused in England and Wales.

Where is surrogacy law going?

 It is expected that the Law Commission will produce a final report with its recommendations for reform and with a draft bill in Spring 2023, which is hoped will go some way to address the issues inherent in the surrogacy process in this jurisdiction. In the meantime however, it is perhaps promising to see a continued shift in societal attitudes surrounding less conventional family units such as surrogacy, which will undoubtedly play an ever increasing role in the modern family.