Surrogacy has become a popular method for LGBTQIA+ couples to build their families, particularly in recent years. Several celebrity couples have spoken out about their experiences with their own surrogacy journey, further endorsing this method as one of the main ways that same-sex couples can become parents.
However, the laws in England and Wales have not kept up; they are outdated and not fit for purpose. This causes an added layer of complexity and stress to what should be a happy time. There is a real need for legal reform in this area.
The reality of surrogacy in England and Wales
In the UK, altruistic surrogacy is legal, but ‘commercial’ surrogacy is illegal. Commercial surrogacy is essentially where you pay the surrogate a fee for having the baby for you, so that it becomes a commercial arrangement.
Although it is hard to completely nail down the statistics, it is estimated that the number of parents having a baby through surrogacy in England and Wales has increased fourfold in the last 10 years.
We know this through the growth in applications for parental orders. A parental order transfers legal parenthood to the intended parents, rather than the surrogate (and their partner, if they have one). In 2021, 435 parental orders were made in England and Wales, compared to 117 in 2011.
A parental order is needed legally in England and Wales, because as the law stands, the surrogate, whether biologically related to the baby or not, is the child’s legal parent from birth (and if she is married then her spouse becomes the second legal parent).
A report published in March 2023 from the Law Commission looked in depth at the realities of changing family structure; how surrogacy law in the UK is failing to keep up with modern changes; and the way people approach growing their family.
The Law Commission set out several recommendations to streamline the surrogacy process and bring the law in line with modern-day families.
Sadly, these reforms have been delayed by the Government and we are yet to see any real change in the surrogacy area.
Why does the law need to be changed?
There was concern that the existing laws failed to adequately protect the surrogate or the intended parents and there was no scrutiny of surrogacy arrangements until after the baby had been born, which is arguably too late. The inability to obtain a pre-birth order in the UK leads many intended parents to travel overseas, but they are then faced with increased expense, complex immigration laws and exploitation concerns.
The delay in the transfer of legal parentage also has the potential to cause issues because generally the intended parents will have full care of the baby from birth, but not the legal ability to make decisions. This means that, for example, if the child needs medical treatment, the surrogate must consent to this.
This limbo period can last at least 6-12 months because it can take this long for a parental order to be granted.
The Law Commission suggested a new surrogacy pathway for UK arrangements. The new pathway would allow the intended parents to be recognised as the legal parents from birth, subject to certain requirements and safeguards being met.
The pros of using surrogacy to grow your family as an LGBT+ couple
Whilst we await much-needed reform in this area, there are still some great reasons to choose surrogacy as a route to parenthood.
Going down the surrogacy route can mean that at least one of you in your relationship is genetically related to the baby. In many cases, the intended parents (i.e., you and your partner) are involved throughout the pregnancy and can start to create the bond with your unborn baby.
Surrogacy also has a high success rate, more so than some other methods. There is also more control for the intended parents through the surrogacy process than there may be for other treatments or adoption.
Surrogacy is a big decision but can be a fantastic route to parenthood for LGBT+ couples, but it is important to do your research, looking at the practicalities, emotional implications and not forgetting the legal side of things, too.
Whilst there are still laws that need updating, we hope to see reform in this area before too long.
Seeking the advice of a specialist family lawyer is recommended when making the parental order application, as a lawyer can guide you through the process, making it a smoother journey.
Liza Gatrell is a Partner at Stowe Family Law
