Skip links

Surrogacy Law

What are some of the issues surrounding surrogacy law?

The SMQ legal family team specialise in a variety of areas.  Surrogacy can be difficult to navigate from a legal standpoint often requiring a parentage order to be court ordered within 6 months of the child’s birth. One of our interns recently explored the law on surrogacy…

Surrogacy law is currently held under the Surrogacy Act 1985 and is also important under the Human Fertilisation and Embryology Act 2008, regarding Parental Orders. Surrogacy is an arrangement between a couple who are unable to have children of their own and a woman who agrees to give birth to a baby on their behalf. It is legal in the UK however, commercial surrogacy is not. Gestational surrogacy is a popular type of surrogacy, using gametes of the biological parents through in-vitro fertilisation (IVF) and the surrogate acting as the host of the baby. The whole surrogacy process is based massively upon trust in the UK. Many couples struggle with fertility issues and surrogacy becomes a last resort for many.

Surrogacy law is described by Lady Hale in Whittington Hospital NHS Trust v XX (2020) as “fragmented and in some ways obscure”, with the finer details of surrogacy being more complicated than you would think. This is in relation to the idea that the surrogate mother is always the child’s legal parent until a Parental Order is later initiated by the intended parents. This involves an application made to court transferring the legal parenthood from the surrogate mother and their spouse to the intended parents. However, it’s not as simple as that because there is a certain eligibility criterion in place that must be satisfied to obtain the order and circumstances might occur including separation or death, which would impact on gaining the parental order.

A recent podcast by Andrew Powell of 4PB and Natalie Sutherland, partner at Burgess Mee Solicitors mention some key issues around surrogacy law and how consent plays a massive role in surrogacy as well as obtaining a Parental Order. The surrogate must consent to the order but it cannot be given the first 6 weeks of the baby’s birth due to the immense emotional experience during that time. In the UK, the surrogate mother has the right to change her mind whereas in America they cannot because it is a contract. This leads to the possible issues of whether the surrogate mother will uphold her promise to give the child to the intended parents and if the intended parents will still take the child from the surrogate mother after birth. If not, this would result in the surrogate having no choice but to keep the child because she will be the legal parent. Therefore, the surrogacy process including parental orders, generates uncertainty, expense and difficult outcomes if there is a delay or complications.

Ms Justice Theis and many others have expressed the view that reform of surrogacy law is urgently needed in order to protect children, so that they are not stateless or parentless. Currently, the Human Fertilisation and Embryology Act 2008 states that the intended parents must apply or issue a parental order action within 6 months of the child being born and beyond the 6 month time limit, intended parents become ineligible. Although, the recent case Re X (2014) amended this time restriction in which Sir James Munby addressed the 6 month timeline as arbitrary. This was seen as a glimpse of hope to widen the scope for individuals when applying for parental orders. The scope of parental orders increased even further in Re Z (2015) after a single applicant sought a declaration of incompatibility to enable parental orders to not exclude the status of a single person as opposed to being part of a couple.

How has COVID-19 impacted on surrogacy?

Surrogacy law is very much a practical and vital area of law but COVID-19 has hugely impacted on intended parents, surrogates and the child, not only internationally but also national surrogacies as a result of three lockdowns in the UK over the past two years. Instead of couples travelling to get IVF, the HFEA have permitted couples to send their gametes abroad during the lockdown to allow them to start their surrogacy process. This is beneficial for the intended parents but consequently, the surrogate will go through labour on their own and once the child is born, the intended parents may not be able to get there because of international or national restrictions. Emergency British travel documentation is required by many but with passport offices closed, immigration was and still can be an issue for intended couples in getting their child back to their home country.

Surrogacy law is a developing area of law but as we have slowly come to the end of lockdown restrictions, complications for both the intended parents, surrogate and the child may ease with easier access to parental orders and contact with surrogates, resulting in less children being born parentless.

By Anja Wood

Reading University Student