Call for legal reform after surrogacies fall

The number of surrogacies in the UK fell by 6% during the pandemic to 490 in 2020/21 from 520 in 2019/2020, shows research by leading private wealth law firm, Boodle Hatfield.

Prior to Covid, surrogacy had been steadily on the rise in recent years. Parental orders, which transfer the parentage of a baby born to a surrogate mother to the intended parent, rose 17% from 441 in 2015/16 to 520 in 2019/20. However, coronavirus-related restrictions, for example on travel, have led to the first drop since 2014/15.

Around half of all children born through surrogacy to British parents are born outside of the UK.* Countries such as Russia, Ukraine and Georgia, and some states in America, are amongst the most popular destinations for finding surrogate mothers. Commercial surrogacy, which permits women to be paid for being a surrogate, is legal in these countries, meaning there are more women who are willing to carry babies for others.

Boodle Hatfield says changes to UK law has made surrogacy more common. In 2010, gay male couples were legally allowed to become parents via surrogacy. Since 2019 single people have been able to have a child through surrogacy.

Awareness around surrogacy has increased in recent years as a result of high-profile figures, such as Elton John and Kim Kardashian, speaking about their experiences. The practice is also becoming more widespread amongst heterosexual couples who have been unable to conceive.

Boodle Hatfield says the law in the UK is in need of reform so as to offer better legal protection both to surrogates and intended parents. Currently, there are a number of restrictions on the practice, including:

• The surrogate is legally the mother until a parental order is made. In practice this cannot happen until the baby is at least 6 weeks old. Until then, both the surrogate and the intended parent can decide to back out of the agreement, putting both parties at risk.
• Women in the UK cannot receive payment for carrying someone else’s child and are only entitled to receive expenses. Inability to pay surrogates makes finding a surrogate mother difficult.

In 2019 the Law Commission issued a consultation paper in which various proposals were made to reform surrogacy. These include the creation of a new surrogacy process to enable intended parents to become legal parents when a child is born, with the surrogate retaining the right to object for a period following the birth. A draft bill is expected in 2022.

Harriet Errington, Family law Partner at Boodle Hatfield says: “Laws around surrogacy are in need of reform to bring the UK up-to-date.”

“Surrogacy is likely to become increasingly commonplace, particularly as people continue to wait longer before starting a family, leading to a lower natural birth rate. We need a system that is fit to cater to modern family structures.”

“As the law stands, both intended parents and surrogates are at risk should the other party renege on their agreement, with potentially devastating consequences.”

*Brilliant Beginnings, UK Surrogacy Agency

Number of UK Parental Orders, transferring custody of a child from surrogate mother to intended parents

Source: Family Courts Data

This article was published in The Times on Monday 15th November 2021.