A call for legal reform in Surrogacy

Children|Surrogacy|November 16th 2018

Two news stories about surrogacy attracted my attention yesterday, and both headlines confirmed the urgent need for legal reform in this area. The first (which can be found here) sets out how it took one set of intended parents eight months before they were able to be officially recognised as their daughter’s legal parents (by virtue of a parental order) while the other (which can be found here), with a catchy headline of ‘surrogate mothers could be allowed to charge cash’ is arguably misleading, as UK law already permits surrogates to be paid.

Having dealt with a large number of parental order applications myself, it is common to see payments made to surrogates of between £8,000 to £16,000 and for this to be set out as a surrogate’s ‘reasonable expenses.’ Reasonable expenses are one of the criteria a family court will consider when looking at a parental order application, and payments of that size are readily accepted. It is important to also note that should a family court believe that more than reasonable expenses have been made, they do have the ability to authorise any payments made retrospectively.

These applications can also take some time, and a time frame of eight months to obtain a parental order, as set out in the first article, is sadly not unusual. When meeting clients who are considering a surrogacy arrangement, the advice I give is that it will usually take between six to twelve months to obtain a parental order after their baby has been born. There are certain cases where this might not take as long (for example, in one case I have represented some intended parents who have been through a surrogacy arrangement in the UK and we have managed to get an application through the family court system in four and a half months after the birth) and others which will take considerably longer (because of a variety of reasons, such as administrative delays or particularly busy court diaries). The problem with this is that intended parents are left in a state of limbo in which they are caring for a child that, more than likely, they will have no legal responsibility for. In reality, this rarely causes any difficulty, with most parents being able to muddle through the period before a parental order is made without experiencing any issue however, it is not a comfortable situation for new parents to find themselves in, and clients are always concerned about this.

It is far from a perfect system, and is one that certainly needs addressing to keep up with the growing number of parents who are considering surrogacy as an option for either starting or growing their family. I was therefore extremely pleased to see earlier in the year that the Law Commission have included surrogacy in their Thirteenth Programme of Law Reform. Work on this has already started and although the commission isn’t expected to complete its work for 2-3 years, this will hopefully give both the time and attention needed to ensure that all of the relevant issues are addressed, and the result of their findings will hopefully be a better legal framework which protects both intended parents and surrogates in a far more appropriate way.

Bethan Cleal, Surrogacy Team at Stowe Family Law

Bethan advises on all aspects of family law and is a specialist in domestic and international surrogacy arrangements. Following her training in a niche fertility law firm, she has experience of fertility cases involving legal parentage and donor conception.

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