The concept of surrogacy has always been considered a taboo subject. Therefore, it is not surprising that many are unfamiliar with the process and the legal implications in this jurisdiction.
With the ever-increasing role that surrogacy plays in modern families and its growing popularity, especially in recent times, we seek to answer some of the questions you may have about the process below.
What is Surrogacy?
Surrogacy has been defined as “the practice by which a woman carries a child with the intention that the child be delivered at birth”. It is important to distinguish that there are two types of surrogacy:
- Traditional (or partial) GPA – this is where the surrogate’s egg is used along with the intended father’s sperm. This means that the surrogate mother is genetically related to the child.
- Gestational (or total) GPA – this is where the surrogate has no genetic connection to the child. The genetic elements of the embryo can be made up of various combinations, such as a donor egg and a donor sperm, or part from the donor and part from the intended parents.
Is surrogacy legal in England and Wales?
The short answer is yes, it is. However, there is a distinction between commercial surrogacy and what some call altruistic surrogacy.
- Commercial GPA involves the surrogate being paid (sometimes significantly) for her role in a surrogacy agreement and usually involves some form of surrogacy contract. This is what many may understand as surrogacy and this form is popular in many jurisdictions including the United States and South America; however, commercial surrogacy is not legal in this country as payments to a surrogate mother (other than for her reasonable expenses) are prohibited in England and Wales.
- Altruistic GPA on the other hand is the opposite; the surrogate mother is not paid and there is generally no contract between the surrogate mother and the intended parents. This is more like the form of surrogacy law in England and Wales. In fact, the law of this jurisdiction goes further by saying that surrogacy agreements are not enforceable and advertising of surrogacy services is prohibited.
What is the surrogacy process in England and Wales?
The starting point is that the surrogate is the legal mother, whether genetically related to the child or not. Also, if the surrogate is married to a man, her husband will be the legal father of the child provided the court is satisfied that he has consented to the process taking place. It will only be once the Court has granted a parental order that legal parentage would change.
The parenting order is far-reaching because it changes the legal parentage of the child and severs the child’s ties with any other parent, such as the surrogate mother. Several conditions must be met for a parenting order to be granted. One of these requirements is that the applicant or one of the applicants must be genetically related to the child. More importantly, however, the surrogate must have freely and knowingly agreed to the taking of the prescription unconditionally. This means that it is possible for a surrogate mother to refuse consent to the granted order.
When can candidates apply for the parental order?
It should be borne in mind that the consent of the surrogate mother cannot be provided less than six weeks after the birth of the child. That being said, it is required that the request for an order be made within six months from the birth of the child (although there are cases where this period has been extended). Either way, it’s essential to ensure the process is started as soon as possible to minimize potential problems.
Why is surrogacy in England and Wales still so rare?
Practitioners and parents have identified several difficulties with current surrogacy laws, which are considered by many to be outdated. These are supported by a Law Commission Consultation Paper which was released in 2019. One of the main recurring themes is the lack of certainty. The main difficulty with the current law is that the intended parents are not automatically the legal parents of the child from birth. This can add considerable anxiety to parties going through an already emotionally and financially burdensome process.
In response to this question, one of the proposals suggested by the Law Commission was that intended parents should be considered legal parents. since birth unless the surrogate objected. This would be a welcome change from the onus on the intended parents to ensure that the surrogate gives explicit consent.
Lack of certainty is just one of the pitfalls of current law, which may explain why the process is still relatively underused in England and Wales.
Where is the surrogacy law heading?
The Law Commission is expected to produce a final report with its recommendations for reform and with draft legislation in the fall of 2022, which should help address the inherent problems with the surrogacy process in this jurisdiction. In the meantime, however, it is perhaps promising to see a continued shift in societal attitudes regarding less conventional family units such as surrogacy, which will undoubtedly play an increasingly important role in the modern family.