Surrogacy—what's next for the UK?

Guest blogger Natasha Slabas examines what could, and should, happen next in relation to surrogacy laws in the UK, taking into account changes to international surrogacy in other countries including India and Thailand.

Changes ahead

India accounts for 56.3% of all of the UK’s international surrogacy arrangements (as cited within Cafcass’s study on parental order applications made in 2013/2014). Surrogacy is a $2.3b industry according to the BBC. Sama, an advocacy support group promoting women’s health and rights in New Delhi, measures profits of $42m. Of this, BBC reports indicate that the clinics receive about 62%, with the surrogates themselves receiving only 38%.

In India a surrogate mother must have had a child of her own and can take part in this type of arrangement once only. The surrogate remains in a hostel throughout the pregnancy, so as to receive medical treatment and to avoid being outcast by her home community. But soon this 'surrogate capital' of the world will prohibit foreign couples from entering into surrogacy arrangements. Thailand also banned surrogacy in 2014 following an Australian couple’s choice to disown one of their twins born with Down’s Syndrome, leaving him behind with his Thai surrogate mother.

Position in the UK

The UK prohibits commercial surrogacy, only allowing for altruistic circumstances. There is no onus on the commissioning parents to make financial provision for medical treatment for the surrogate during the pregnancy but they can reimburse reasonable expenses. The surrogate is the legal parent, as is her husband if she is married, unless and until an application is made by the commissioning parents for a parental order (which can be made no earlier than six weeks and no later than six months after the child’s date of birth). An adoption order can also be applied for in respect of which no time limit is stipulated.

This means that there is no legal recognition of the commissioning parents' status for as much as six months after the child’s birth. There are obvious risks – medical issues may arise during pregnancy, or, even worse, a surrogate may die without there being any protection for the parties to the surrogacy arrangement. Under this system, inheritance and children law provisions concerning the child remain within the surrogate’s domain until the parental orders are granted.

What changes could be made?

But is there is enough demand for surrogacy to justify a change to legislation? Cafcass reported there were 189 parental order applications made in the UK between 2013 -2014, concerning 238 children. If the children figure appears high, bear in mind that fertility treatment results in a woman being more likely to have a multiple birth. These figures don't account for commissioning parents who have slipped through the net and not even made an application for a parental order. It goes without saying that this is a rather bleak outcome as these children are, in the eyes of the law, parentless.

The statistics show that parental orders are predominantly applied for by heterosexual couples, accounting for 78.8%, with 22.2% granted to gay male couples. In comparison, 7% of children were adopted by same-sex male couples in 2013-2014 out of 4,835 adoption applications in total, ie the numbers of adoptions are significantly higher than parental orders. In addition, the criteria attached to eligibility to adopt is far wider. A single individual may adopt, but a single individual cannot apply for a parental order, thus surrogacy cannot confer legal parentage on a single individual. This means that a portion of the data for adoption could in fact relate to surrogacy arrangements, and the total number of surrogacy arrangements remains ascertained.

Case law

Case law illustrates the complications that can arise in relation to overseas surrogacy arrangements.

In Re Z (Foreign Surrogacy: Allocation of Work: Guidance on Parental Order Reports) [2015] EWFC 90 the couple were granted a parental order after a year and a half of litigation, due to various problems including immigration issues and questions over the identity of the surrogate. This case now provides some assistance as to the allocation of international surrogacy cases to a High Court judge from the outset, due to the complex issues to be determined.

Other reported decisions have involved commissioning parents who had applied out of time for a parental order (after six months from the child’s date of birth), when returning to the UK. In Re X (A Child) (Surrogacy: Time Limit) [2014] EWHC 3135 (Fam) and A and B (No 2 – Parental Order) [2015] EWHC 2080 (Fam) the couples were still granted a parental order, and these decisions demonstrate leniency and perspective on the part of the judiciary.

In Re DM and LK [2016] EWHC 270 (Fam) the couple had gone to Cyrprus to seek a surrogate. The surrogate and her husband agreed to the surrogacy arrangement without knowing that the commissioning mother had a new partner. Despite this there was no evidence that consent was later withdrawn by the surrogate and, all other criteria being satisfied, Theis J granted the parental orders.

The case for reform

There is an ethical debate for and against surrogacy. For some there are concerns as to the idea of 'renting a womb' and potentially exploiting third world women. On the other hand, surrogacy arrangements may be given support by those who view surrogacy as an opportunity made available by modern science. But infertility is on the rise, and couples, including same-sex couples, have an alternative available to them due to assisted reproductive treatment - surrogacy is appealing, if not miraculous, for those who would otherwise not be able to have a child.

If our surrogacy laws remains stagnant, will there be less instances of people seeking surrogacy arrangements? With prohibitions on surrogacy in India and Thailand, couples may simply seek surrogacy arrangements in other countries, or, concerningly, a black market may thrive from the gap in demand.

Surrogacy UK released a report in November 2015 setting out proposals for reforms to surrogacy law.  Thirty years on from the UK’s first surrogate case, the law as to surrogacy arrangements remains largely the same and what is needed now is a robust framework that meets the needs of those who wish to enter into such arrangements as well as the children who are born as a result of surrogacy.

Natasha Slabas is a solicitor at Grayfords.

The views expressed by our Legal Analysis interviewees are not necessarily those of the proprietor.