The Inconsistent Consistencies of UK Surrogacy Law

The most clichéd outcome any of us can imagine in relation to surrogacy, is the surrogate mother deciding not, in the end, to hand over the baby. And thus this is precisely what has happened in a recent Coronation Street storyline. Of course, there were a few ‘shocking’ twists and turns added in for dramatic effect; I don’t suppose it is that common for the intended father to find himself in a romantic clinch with the surrogate mum, for instance. As with every soap storyline, this one comes with a warning ‘do not take too seriously’. But events on the Street did get us thinking here at Prince Family Law; what are the legal rights and responsibilities associated with surrogacy here in the UK?

The short and simple answer is that the law in this area is distinctly patchy. While it is well established that surrogacy must not be carried out for commercial gain in this country (Surrogacy Arrangements Act 1985), according to Louise Ghevaert, a leading fertility lawyer, “Surrogacy law in the UK has not kept pace with the increasing number of couples undergoing surrogacy either in the UK or abroad. [And yet] (t)he globalisation of surrogacy, frequent media coverage and celebrity endorsement by Robert De Niro, Nicole Kidman and Elton John have raised the profile of surrogacy and made it a more popular family building option than ever before.”

Many of the inconsistencies within the law are centred on the rights of the Intended Parents (the term used to describe couples who are to be in receipt of the surrogate baby). In essence, those couples who become parents via this route are not yet afforded the same level of legal protection as other kinds of parents. Situations like those that occurred in Coronation Street, where the intended parents do not ‘receive’ the baby, are thought to account for less than one percent of all surrogacy arrangements. Nevertheless, despite their emotional and practical investment, they have no automatic parental rights at the moment of the baby’s birth, and must seek a Parental Order in order to become the parents they have felt themselves to be throughout the pregnancy (The Human Fertilisation and Embryology Act 1990, as amended in 2008 to include unmarried and same-sex couples). A Parental Order can only be made with the surrogate mother’s consent, although a landmark case involving another leading fertility lawyer, Natalie Gamble, did allow a gay couple to acquire a parental order in circumstances where the surrogate mother could not, after reasonable efforts, be located: D and L (surrogacy) [2012].

The case did highlight the problem of a lack of international consistency around surrogacy; a growing problem, given the high number of parents who seek a surrogate mother overseas. The landmark case of X & Y (Foreign Surrogacy) [2008] involved a UK couple who had made a surrogacy arrangement with a Ukrainian woman, who gave birth to twins using anonymously donated eggs fertilised by the male applicant’s sperm. The judge, wanting to highlight the problems of international surrogacy arrangements and immigration laws, heard the case in open court, stating that the children were, in effect, “marooned stateless and parentless whilst the applicants could neither remain in the Ukraine nor bring the children home”. The principle of acting in the best interests of the children, well established in both statute and case law here in the UK, took precedence, and the Parental Order was granted to the intended parents.

Back in Britain, and there are other inequalities still at play. Intended parents are currently denied access to maternity or paternity leave or pay. However, thanks to the campaigning of Surrogacy UK, a leading not-for-profit surrogacy organisation, this is set to change in 2015. As of this point Intended Parents will then qualify for leave for ante-natal appointments and to statutory adoption pay and leave. These changes will go some way to redressing the balance, but the arena of surrogacy remains fraught with issues. Ultimately, the small body of specialist legal advisors in this area are united in their call for a fundamental overhaul of the law in relation to surrogacy. While a storyline in a soap would always struggle to convey the complexity of any area of the law, perhaps no harm was done in raising the profile of surrogacy; after all, for a small but significant number of parents, it has been the only route open to them as they strive to create the family life they have always dreamed of, and gain equality with other families.