With reports suggesting the number of surrogacies in the UK have tripled in the last three years, it is undoubtedly becoming a more common route to parenthood.
While there is still further progress to be made, in terms of awareness and understanding of the processes involved the public perception of what surrogacy involves can differ somewhat to reality.
There are two main forms of surrogacy; the traditional option where the surrogate uses their own egg and is genetically related to the child, and gestational surrogacy, where the surrogate's egg is not used, and IVF is used to conceive the child. In the UK, surrogacy is available to various family units, with recent trends pointing towards it being increasingly used by same sex couples. Contrast that with countries like Israel where surrogacy is only available to intended parents who are heterosexual couples, or Ukraine where surrogacy is exclusive to heterosexual married couples.
In terms of what UK law says, surrogacy is legal provided its basis is altruistic; surrogates cannot receive payment or other benefit from the intended parents. However, they can claim "reasonable pregnancy-related expenses" incurred because of pregnancy and birth.
Often the process will be outlined in a surrogacy agreement, which establishes the terms of the arrangement (many clinics require an agreement to be in place before offering treatment). However, these agreements are not enforceable in the UK and lawyers are prohibited from drafting one for commercial gain. The surrogacy process can be complicated, and as demonstrated in The Surrogates, a surrogate mother can refuse to give up the child at birth, and if that happens, the intended parents cannot take any steps to enforce what was previously agreed. The surrogate is not the only vulnerable party, the intended parents can be too.
Many people contemplating surrogacy do not realise the intended parent(s) do not automatically become the legal parent(s) of the child after birth. UK law provides that the legal parents of a child are the surrogate mother and her spouse/civil partner (unless his/her consent was not given to the process). Intended parent(s) must apply to the court for a parental order, enabling parentage to be transferred.
The process can be lengthy, and, in the meantime, the intended parents' ability to make decisions about the child in their care is compromised. Importantly, the consent of the surrogate mother (and her spouse/civil partner if applicable) is essential for the parental order to be granted. Currently, intended parents who have opted for gestational surrogacy using donated sperm and eggs and have no genetic link to the child, are not eligible to apply for a parental order and may need to consider other options, such as adoption.
Potential challenges like these form part of widespread concerns that UK surrogacy legislation is outdated and should be changed to reflect current attitudes towards surrogacy. Regulation of the process is also considered to be insufficient, making it difficult to monitor and maintain high standards. Surrogacy laws are currently under review by the Law Commission of England and Wales and the Scottish Law Commission, and a draft bill should be available in early 2022. The key proposals being considered are:
Creating a new surrogacy pathway to allow, in many cases, the intended parents to become the child's legal parents from the moment of birth; Introducing a specific regulation for surrogacy arrangements and safeguards such as counselling and independent legal advice; and Allowing international surrogacy arrangements to be recognised here on a country-by-country basis.
It is hoped the new, proposed pathway will better protect the child's welfare and greater emphasis will be placed on the process before the child is conceived, allowing for more meaningful scrutiny of surrogacy arrangements.
It is likely that the frequency of surrogacy will continue to rise; the outcome of the reviews in Scotland, England and Wales will play an important role in paving the way for changes to UK surrogacy laws, and subsequently, the future route to parenthood for many people.
Fiona Sharp is a senior associate, Brodies LLP