Surrogacy: A viable Alternative to Adoption?

As LGBTQ+ Adoption and Fostering Week draws to a close, in our final article we consider surrogacy, an alternative pathway to parenthood in England & Wales. We considered the process of both domestic and international adoption earlier this week.

Surrogacy

Surrogacy is when a woman carries and gives birth to a baby for another person or couple, with the intention that the child will be raised by the intended parent(s) shortly after birth. The surrogate either uses her own eggs and the intended father’s sperm (traditional surrogacy) or the eggs of one of the parents or a donor (gestational surrogacy). 

If intended parent(s) are considering surrogacy, it is important to note that the current legislation sets out that: 

• The surrogate will always be the child’s legal mother at the time of birth;
• If the surrogate is married or in a civil partnership at the time of conception, then her spouse or partner will be the other legal parent (although there are exceptions);
• The intended parent(s) applying for a parental order must be husband and wife, civil partners of each other or two persons who are living as partners in an enduring family relationship; 
• The intended parent(s) can then apply for a Parental Order, to transfer legal parenthood to them;
• At the time of the application and the making of the order the child’s home must be with the intended parent(s), and either or both of the applicants must be domiciled in the United Kingdom, Channel Islands or the Isle of Man;
• At the time of the making of the order both applicants must be aged 18 or over; 
• The court must be satisfied that no money or other benefit (other than for expenses reasonably incurred) has been given or received by either of the applicants; 
• The court must be satisfied that both the surrogate who carried the child and any other person who is a parent of the child but not one of the intended parent(s) have freely, and with full understanding of what is involved, agreed to the making of the order; 
• The intended parent(s) can apply for a parental order 6 weeks after the child is born. The parental order should be applied for within 6 months of the child being born; and 
• Without a parental order, the intended parent(s) may not be the legal parent(s). 

It is important to note that the surrogate is always the legal parent at the time of the child’s birth even if the intended parent(s) eggs and sperm have been used and the surrogate is not biologically related to the child. 

There are many complexities with the current surrogacy process, in part as the legislation has not kept up with societal change. Recognising the issues, the Government set out proposed reforms last year. One of the main proposed changes is that the transfer of parenthood should be made easier. It is anticipated that there will be a new pathway to parenthood requiring certain conditions to be met in order for the intended parent(s) to become legal parents at the time of the child’s birth without the need for court intervention. Further information can be found on the Law Commission’s website here. 

As it stands, there are approximately 500 children per year born through domestic surrogacy. The number of parental orders, which transfer legal parentage from a surrogate to the baby’s intended parents, rose from 117 in 2011 to 413 in 2020. It is expected the number of intended parents considering surrogacy as a viable path to parenthood will increase if the proposed reforms are implemented successfully and offer better protection for intended parent(s). 

If you would like to find out more about surrogacy and how to start the process, we have the expertise and knowledge to support you in applying for a parental order. We have a dedicated Fertility Law Team of Excellence who would be happy to discuss the process with you.