During National Fertility Awareness Week, a legal expert shines a light on the law on surrogacy in the UK.
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Did you know that 3.5 million people in the UK face fertility issues? That’s 1 in 6 people in the whole country, according to Fertility Network UK.
Fertility awareness week gives recognition to the hurdles so many can experience on their path to parenthood and provides an outlet for people to talk more openly about their experiences when trying to become parents.
Some are discussing how to gain access to NHS-funded fertility treatment. Others who feel they’ve exhausted enough routes to naturally conceive are perhaps exploring the route of adoption.
Another path less commonly approached is the option of surrogacy, perhaps due to it being outlawed in most of Europe and couples often travelling far to countries where surrogacy is legal, like the US and Canada, before bringing their babies home.
Not many know that surrogacy is legal in the UK. In fact, in a study conducted by Progress Educational Trust or PET last year, 15% of respondents thought that surrogacy is illegal in the UK while over a third said they didn’t know.
Two kinds of surrogacy
Lindsey Ogilvie, a partner in Turcan Connell’s family law team, explains that under the current law on surrogacy in the UK there are generally two forms of surrogacy: partial and full.
Whilst partial surrogacy involves the intended father’s sperm fertilising an egg from the surrogate mother, full surrogacy allows couples to still choose this fertility method through the implantation of a fertilised egg or embryo into the womb of the surrogate mother. This means unlike partial surrogacy, there is no genetic link between the surrogate mother and the child.
Law on surrogacy in the UK
Lindsey says the surrogate and her spouse or civil partner (if she’s married or in a civil partnership) will be considered the legal parents of the child on birth unless it can be shown they did not consent to artificial insemination.
She explains: “The surrogate will be listed as the mother in the child’s birth certificate. As the legal mother, the surrogate must also give permission if the child needs medical treatment.
“The couple who commissions a woman to give birth in a surrogacy arrangement are not considered the child’s legal parents in the UK unless they secure a parental order.”
What is a parental order (PO)?
Lindsey defines a parental order (PO) as something that allows a parental order certificate to be issued in the intended parents’ names. This certificate can be used in the same way as a child’s birth certificate.
Two people can seek a parental order; they can be husband and wife, civil partners or those in an enduring family relationship.
Since 2019, a single person can also apply for a parental order.
The Ministry of Justice says 15 parental orders were made in Scotland in the last four to five months of 2020 and in the year 2021.
Lindsey says: “It’s rare for a court to refuse to grant a PO. But it can take several months as the court must be convinced the applicant received no money or benefit other than for ‘expenses reasonably incurred’.”
She adds: “The surrogate mother must consent to the parental order being granted and her consent cannot be sought earlier than six weeks after the child’s birth. She can also change her mind at any time before a parental order is granted.”
A new pathway
However, Lindsey points out: “Because the Surrogacy Arrangements Act was written more than 30 years ago, its provisions are out of date and out of step with modern understanding of families.”
That’s why earlier this year, the Scottish, English and Welsh law commissions published a report and draft bill outlining a new regulatory regime for surrogacy.
Called Building Families Through Surrogacy: A New Law, Lindsey describes it as a move away from a judicial to an administrative process, offering more safeguards and support.
She adds: “The recommended reforms seek to respect the shared intentions of the parties to the surrogacy arrangement and to place the best interest of the child at the heart of surrogacy law. They also maintain the surrogate’s physical autonomy while providing clarity on expenses and the means by which surrogacy born children can access information about their birth.”
For more information and assistance, contact Lindsey Ogilvie on 0131 228 8111 or email lindsey.ogilvie@turcanconnell.com
You can also visit Turcan Connell’s website.
