A decade or so ago the subject of surrogacy was taboo, little talked about and many people were uncomfortable about surrogacy. There were very few surrogacy law specialists in the UK and those that did practice at that time saw more altruistic arrangements than commercial ones.
However, now there are more positive stories in fictional TV, less of the extreme documentaries and generally an acceptance of, and positivity surrounding, gay couples having a child via surrogacy. The tabloids still look for the headline, but over the last few years there have been many emotionally sensitive articles and documentaries highlighting the amazing experience of surrogacy.
For example, back in March when Tom Daley and Dustin Lance Black announced their intention to have a child through surrogacy, Dustin recorded an honest and thought provoking podcast with Radio 5 Live. Dustin talks of the different reactions to their surrogacy arrangement in the USA versus the UK. He explains that the reception was warm in the USA, where the process is understood and there is legal clarity. In the UK, some comments were not so friendly; there are still misconceptions about what surrogacy is and the legal framework isn’t so encouraging.
From a legal perspective, we have seen change over 10 years and the present legal position, whilst not ideal, does help families who have gone through surrogacy. Judges have flexed the black letter law so that the required criteria in section 54 of the Human Fertilisation and Embryology Act is applied with some flexibility and the best interests of the children are at the forefront of decisions made.
The law in England, in summary, is as follows:
- surrogacy arrangements and contracts are not legally binding
- the surrogate (the birth mother) is the legal mother until the court makes an order removing her parentage status
- intended parents can make an application for a parental order, which has the effect of recognising them as the legal parents (and removing the legal status of the surrogate)
- payments to a surrogate are NOT illegal but insofar as they are above reasonable expenses, they have to be authorised by the court in any parental order application
The future for surrogacy law in this country is bright. Parental Order applications have increased by almost 90% over the last five years according to the CAFCASS national database which records the number of Parental Order applications received by the courts in England and Wales. Surrogacy is on the agenda for reform with the Law Commission. A remedial order is going through Parliament to allow a sole applicant to apply for a parental order (at the moment only couples can apply). In March 2018, the Department of Health published its Surrogacy Pathway giving much needed guidance to those considering a surrogacy journey in England and Wales. These developments are positive and show that surrogacy is now not only accepted but also valued.
Dustin is right that intended parents shouldn’t be held back from parenthood, motherhood or fatherhood, by legal challenges and outdated law. We need to embrace the advances in fertility treatment which facilitate these much wanted children to be born. I am hopeful that the law will catch up with the changes in our society and encourage modern families.
If you are exploring using a surrogate or have been approached about becoming one and you would like more information about the legal practicalities, contact our surrogacy solicitor, Rosalind Fitzgerald.