Surrogacy in the UK - where are we now?
4 April 2023 | Applicable law: England and Wales | 3 minute read
Having recently become a new father and expecting my second child by the end of the year, I am more appreciative than ever of the importance and transformative nature of parental orders. Such orders recognise intended parents in surrogacy situations as the legal parents of the surrogate child and vests parental responsibility for the child with them.
As well as the obvious emotional and psychological significance of obtaining this order, there are also important practical consequences – it allows you to make decisions about your child’s medical care and education and avoids the need to involve the surrogate (and their partner) in future decisions involving your child.
Are you legal parents?
The need to apply for a parental order in this country can often come as a shock to intended parents with international surrogacy arrangements. They may have arranged matters with a surrogate from outside the UK and have orders conferring legal parenthood in another country, but this won’t be enough.
There are currently no international or reciprocal arrangements in force that govern surrogacy (although the Hague Conference on Private Children International Law have set up a working group to help explore this) which means that any orders conferring legal parenthood made abroad are not automatically recognised or enforceable in the UK.
I can see that the parental order process undoubtedly helps guard against the exploitation of surrogates and promotes the welfare of the child. This is of critical importance given the wide disparity in surrogacy law and practice across the globe, where regulation is inadequate or where the sums of money payable to the surrogate are life changing.
But this additional requirement often comes an unexpected as well as unwelcome hurdle, particularly as one criterion for making the application is that it needs to be done within 6 months of the child’s birth. Time (as I am quickly learning) goes very fast for any new parent.
Good news reform is around the corner for international surrogacy arrangements. In 2019, the Law Commission embarked on a consultation on surrogacy and published a consultation paper. This included proposals for potential reforms in respect of both domestic and international surrogacy arrangements.
One of the questions raised was whether UK law should recognise intended parents as the legal parents of a child born via an international surrogacy agreement automatically, where parental status has been conferred abroad, removing the need to make an application for a parental order in this country.
The Law Commission report recommendation is that the default should still be that parental orders still be required, so as to protect the vulnerable and avoid exploitation, but with the potential for automatic recognition of legal parenthood status acquired abroad. This would only be in cases where the government is satisfied that the legal framework of that country provides sufficient protection for the welfare of the child and guards against exploitation of the surrogate. Many countries have a well-established infrastructure and appropriate regulations to support the surrogacy process (eg California) but others don’t.
The Law Commission expects to produce its final report setting out their proposals, and a draft Bill, some time this year. If adopted, it will be interesting to see how its proposals will affect my international surrogacy clients and international surrogacy generally.
In the meantime, intended parents must continue to take timely legal advice, both in the country where the surrogacy takes place, and in the country in which they intend to live with their baby. Then, they can devote precious time to their new-born, rather than navigating the current, rather tricky parental order surrogacy legislation (as I plan to do in December, in addition to watching the World Cup).