Surrogacy: new proposals being conceived

Increasing numbers of people are turning to surrogacy as a means of starting a family. But what is it, and how does it work?

In surrogacy, a third-party carries the child to term in place of the child’s parents. It comes in two forms: host/gestational surrogacy and straight/traditional surrogacy.

Gestational/host surrogacy

In host surrogacy, embryos made by the intended parents are transferred into the surrogate using IVF (in-vitro fertilisation). There’s no genetic connection between the surrogate and the child. Embryos comprise both parents’ genetics or the genetics of one plus either donor eggs or donor sperm.

Straight/traditional surrogacy

In straight surrogacy, the surrogate’s own eggs are used to conceive. This can happen by way of artificial insemination, with an insemination kit, or in a clinic using IUI (intrauterine insemination) or IVF.

Surrogacy is hotly debated across the world, especially in instances where money changes hands.

India banned commercial surrogacy last year and the State of New York is currently debating a bill to legalise it.

What’s not up for debate is that all parties must understand the agreed arrangements and the implications of the agreement before the baby’s conceived.

At the moment, there’s a lot that can be done after conception but before birth, to prepare the application for the requisite Parental Order.

This is a court order making the intended parent or parents the legal parents of the child. It removes the rights of parenthood of the surrogate and her spouse.

It’s key for intended parents to get specialist legal advice as early as possible. Sleepless nights will be plentiful once the baby arrives, without added legal complications.

Single parents and surrogacy

Unmarried couples have been able to apply for a Parental Order for over a decade. But single parents have been able to do this only since January 2019. This development followed the Re Z case brought by a single father who challenged the law on human rights grounds.

The Law Commission and Scottish Law Commission have recognised that this is unlikely to be the last challenge to the current law. So they’ve published a joint consultation paper, setting out proposals to reform long-outdated legislation.

Reforming surrogacy law

The consultation proposes that intended parents should be allowed to become legal parents from the moment the child is born. Under current law, the surrogate and either her partner or the intended parent (if his sperm was used to conceive) remain the legal parents. That lasts until the intended parents obtain a Parental Order.

This is all despite any agreement reached between the parties and even though the child will no doubt live with and be cared for by the intended parents from birth. The need for legal change is clear.

The new proposal is referred to as a ‘pathway to legal parenthood’. The Commissions have laid out a ‘road map’ of best practice. It details all the steps the intended parents and the surrogate should take, before and after conception.

These steps include ‘implications counselling’, a requirement for the parties to obtain independent legal advice, safeguards (including medical checks and enhanced criminal record checks) and a written Surrogacy Agreement.

Provided that post-birth (within a limited period of time) the surrogate doesn’t object, the intended parents will simply be registered as legal parents.

This should do away with the need for a lengthy legal process and all the associated costs and anxiety.

Helpful proposals

The proposals are very welcome. Currently, intended parents must issue their application for a Parental Order within six months of birth. This is a demanding process, as the court requires detailed information. It’s far from ideal and the last thing new parents need in the first few months of their child’s life.

The consultation includes other helpful proposals. These include the creation of a Surrogacy Regulator or similar organisation. This would allow international surrogacy agreements to be recognised in the UK. This would make it quicker and easier to travel to the UK with children born through surrogacy in a foreign country.

The proposals would also clarify the law on payments that intended parents can make to the surrogate.

Legal limbo

The consultation closes in September 2019. In the meantime, both parents and surrogates are left in a position of legal limbo for many months until a Parental Order is granted.

Not-for-profit organisations continue their excellent work in attempting to fill the void and encourage parents and surrogates to follow best practice. However, many people are simply reaching out to potential surrogates online and making informal arrangements to avoid the costs of the currently protracted process, potentially putting parents, surrogate and child at risk.

At Manders Law, Senior Associate Emily Kozien-Colyer is highly experienced in advising intended parents on this complex area of law. She can be contacted on (0)1245 895 105.

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