Surrogacy is on the rise, but the law on it is outdated. Is it time for reform?
A report by the University of Kent has found that the number of parents using surrogacy has nearly quadrupled in the last 10 years.
The current English law on surrogacy, which is nearly 40 years old, is wildly outdated. There are increasing calls for reform, particularly in light of this significant rise in cases. This article gives an overview of what surrogacy is and why some laws are considered problematic.
What is surrogacy?
It is where a woman, also known as the surrogate, carries a child for an individual or couple who will then become the child’s parent or parents.
Why do people use surrogacy?
There are many reasons why an individual or couple may opt for a surrogate. For example, someone may be unable to carry a pregnancy, or it may be for a male couple in a same sex relationship.
What happens when the child is born?
When the child is born, the surrogate is the legal mother of the child.
The legal parenthood can then be transferred from the surrogate to the new parent or parents, via a parental order made by the Court. The report by the University of Kent discovered that parental orders have increased from 117 in 2011 to 413 in 2020.
What does the rise in surrogacy mean for English law?
There are many laws on surrogacy which are thought to be problematic.
For example, it is illegal to advertise for a surrogate which means that it can be difficult for someone to find a surrogate to have their baby.
The process of transferring legal parentage also cannot be started until the child is born. This can cause much anxiety for the parent(s) as they could be worried that the surrogate may back out of any surrogacy arrangement, which under English law is not currently enforceable. This rise in surrogacy, therefore, arguably, is going to place more pressure on reform due to the difficulties with the laws which govern the process.
It is understood, however, that the Law Commission of England and Wales is currently reviewing surrogacy law and they expect to produce a final report with recommendations for reform of the law and a draft Bill in early 2022. So watch this space.
If you would like advice on surrogacy, parental orders, or any other family matter, please get in touch with our team who would be happy to assist you.