It’s National Surrogacy Week this week (2-8 August 2021) and the aim is to raise awareness and celebrate surrogacy and all the amazing work being done by professionals involved.

The focus this year is on surrogacy choices in the UK to highlight organisations that can assist in a surrogacy journey.

Surrogacy is a path to parenthood, which otherwise may not have been available to some. This could be because of infertility or the biological impossibility of carrying a child for same-sex male couples or single men. More parents than ever before are using surrogacy to create their family reflecting a shift in society.

However, a woman carrying a child for someone else is still somewhat of a controversial concept and in some countries it is illegal. The first reported UK surrogate was Kim Cotton, who went on to establish the surrogacy agency Childlessness Overcome Through Surrogacy (COTS) in 1988, a not for profit surrogacy agency. She carried a child for an anonymous couple from the United States through a US agency and she received £6,500. That prompted outrage amongst many and the Surrogacy Arrangements Act 1985 (“the 1985 Act”) was cobbled together in the hope to extinguish the practice. Sections 2 and 3 of the 1985 Act made commercial surrogacy an offence, meaning that you cannot negotiate or facilitate a surrogacy arrangement, or advertise that you are looking for a surrogate, willing to become a surrogate or are willing to enter into a surrogacy arrangement or negotiate or facilitate one.

As part of the parental order application, (the parental order transfers legal parentage to the intended parents if they fulfil the criteria) the court has to decide whether the surrogate has received ‘reasonable expenses’ or (somewhat paradoxically) later authorise the payments or benefits (section 54 (8) Human Fertilisation and Embryology Act 2008). Paying over and above reasonable expenses is not a criminal offence and the worst that could happen, is that the parental order would not be granted. Although, in practice, as the court’s paramount consideration is now the welfare of the child, it’s highly unlikely that this would be a reason not to grant a parental order and the court would likely retrospectively authorise the payments. Most would agree that surrogacy should not be a purely commercial transaction, but much of the legislation has resulted in contradictions and gaping holes making it a minefield.

From a legal standpoint as a lawyer acting in this field, the shortfalls in the antiquated legislation around surrogacy arrangements are all too glaring. To address the shortfalls, the Law Commission carried out a full consultation on surrogacy, which ended in October 2019 and is expected to produce a final report with law reform recommendations and draft bill, in 2022. One of the most significant issues identified is that the intended parents are not automatically the legal parents at birth and one of the Law Commission’s key proposals addresses this. It is likely that the draft bill will provide for the intended parents to automatically be the legal parents at birth, with the surrogate retaining a short period of time to object, so reversing the onus.

Whilst there have been some positive changes to the law since the 1985 Act, an overhaul to the underlying legislation is long overdue as it does not adequately provide for the child, parents or the surrogate. The handing over of the baby is down to trust and thereafter creates a stressful limbo situation, prior to the intended parents being granted a parental order. A parental order cannot be made until six week after the birth, and in reality it could take several months and so the legal position during that period does not sufficiently reflect the reality of the situation, and the intended parents may not have the legal right to make important decisions for their child until the parental order is granted.

So, whilst there have been some very innovative family court judges in interpreting surrogacy laws in ways to achieve the best outcome for the child concerned, a change in the legislation will be welcomed by all those involved. Having celebrations such as National Surrogacy Week helps to keep the spotlight on this really important subject and need for change.