Surrogacy law in the UK is outdated. Laws were first introduced over twenty years ago. Their aim was to prohibit commercially arranged surrogacy and limit surrogacy to small numbers of altruistic arrangements involving friends or family. Although surrogacy law was updated in 2008 as part of a wider review of fertility law in the UK, its legal framework was not fundamentally overhauled, and it remains complex and restricted.
Surrogacy laws in the UK have not kept pace with the growing numbers of people embracing surrogacy either domestically or abroad. The globalisation of surrogacy and intense media coverage and celebrity endorsement by the likes of Nicole Kidman and Elton John have all fuelled interest in surrogacy. There is, however, still a great deal of work to be done in the UK to raise awareness of the legal pitfalls and to address these. Problems with the law include:
- Intended parents often have no legal status for their much wanted surrogate born child at birth. Legal parenthood and parental rights vest in the surrogate mother (and her husband or civil partner) leaving intended parents without the right to consent to medical treatment or immunisations, register the birth or apply for a passport.
- Single people are prohibited from applying for a parental order (only married, unmarried and same-sex couples are eligible to apply) which is inconsistent with other family law which enables single people to become parents through donor conception or adoption.
- There is no international harmonisation of surrogacy law, which can leave surrogate children born abroad to foreign surrogate mothers stranded, stateless and parentless with no entitlement to a British passport or right to enter the UK.
- There is a non-extendable six month deadline for applying for a parental order and if this deadline is missed, the ability to apply for a parental order is lost forever, unlike other discretionary family law applications.
- Intended mothers have no automatic entitlement to maternity pay or other rights (unlike those who are adopting a child) and this can force intended mothers to have to give up their jobs or take unpaid leave to care for their surrogate born child and can place immense pressure on the family.
Progress
Despite the problems with surrogacy laws in the UK and the need for further changes, there have been some improvements in recent years.
The international surrogacy case of Re L (a minor) 2010, represents a landmark judgment making the welfare of the child the court’s paramount consideration except in the clearest case of abuse of public policy. (Louisa Ghevaert represented the parents).
Louisa also provided expert legal comment to the Department of Health’s 2009 consultation on draft surrogacy regulations, which introduced much needed changes to English surrogacy law on nationality in international surrogacy cases.
Following discussions with the Department of Health and much lobbying Louisa helped secure last minute changes to embryo storage laws in September 2009 awarding surrogacy patients the same rights to extended storage for their embryos as other fertility patients. (See media coverage below for which I was named as The Times Lawyer of the Week and Legal Gazette Lawyer in the News).
There is, however, still much work to be done. If you would like to discuss your personal situation or any of the issues above please contact us by email at fertilityandparenting@porterdodson.co.uk or by telephone +44 (0)207 222 1244.
+44 (0)207 222 1244
