It’s an exciting time for many couples and families as they prepare to welcome a child, whether that’s after emotional fertility struggles, as the next step for same-sex couples, or as an alternative route for those who may not be able to carry a pregnancy themselves.
However, the laws around surrogacy doesn’t seem to have shifted since the original legislation was introduced. Is it time they were reviewed to make the process fairer for everyone involved?
A recent segment on ITV’s This Morning highlighted the story of Adam and Jamie, a same-sex couple who chose surrogacy to welcome their daughter, Leven. Despite one of them being the biological father, they are currently in limbo, waiting for the UK courts to grant a Parental Order so they can be recognised as their child’s legal parents.
In their case, the couple used their own sperm, a donor egg, and a surrogate based in the United States. In the US, the law recognises intended parents as the legal parents from birth. While in the UK, they must go through the legal process of being granted a parental order to become Leven’s legal parents and are now campaigning for that part of the law to change.
If one of them is the biological father, why do they need a Parental Order?
In the UK, surrogacy law is still largely shaped by the Surrogacy Arrangements Act 1985.
There are two main types of surrogacies:
- Gestational surrogacy – the surrogate has no genetic link to the child
- Traditional (partial) surrogacy – the surrogate uses her own egg
Regardless of genetics, the UK law recognises the person who gives birth as the child’s legal mother.
This approach is based on a few key principles:
- It provides certainty (there is no dispute about who gave birth)
- It protects the person carrying the pregnancy
- It avoids confusion at the point of birth
Even though science has advanced, the law has not shifted towards genetics. This is because genetic parenthood can involve multiple people (egg donors, sperm donors, and intended parents) whereas birth is a clear and definite event.
The Parental Order process
To become the legal parents in the UK, a Parental Order must be applied for through the court. This transfers legal parenthood from the surrogate to the intended parents.
- The surrogate must give consent after the birth
- Consent cannot be given until at least 6 weeks after birth
- The application should usually be made within 6 months
Only once the order is granted are the intended parents recognised as the child’s legal parents under UK law.
Where the surrogacy arrangement is international, as in this case, after the order is granted in UK, the child’s nationality can be properly addressed and changed to UK citizenship.
Is it time for surrogacy laws to be reviewed?
Arguably, yes.
The foundation of UK surrogacy law has remained largely unchanged since the Surrogacy Arrangements Act 1985. While later developments, particularly through the Human Fertilisation and Embryology Act 2008, have made the law more inclusive by allowing same-sex couples, unmarried couples, and single people to apply for Parental Orders, the overall structure remains the same.
A review of surrogacy law in 2023 proposed significant changes, including recognising intended parents as the legal parents from birth in certain circumstances. However, these changes have not yet been implemented, meaning the current legal framework remains in place.
Perspective
Despite developments in fertility and modern family life, the law is very much outdated and needs to change to reflect how families are formed today. However, as with most things, change won’t happen overnight. With little progress following the 2023 review, it raises the question of whether this will be addressed again any time soon.
Adam and Jamie are campaigning for changes to surrogacy law and the rights of intended parents. They have started a petition which now has over 100,000 signatures, meaning it may be considered for debate in Parliament.
Fingers crossed!
If you need advice regarding surrogacy, get in touch with one of the team today.
