Parents whose children have been born via a surrogate have welcomed law reforms they say will make the process more accessible.
Under current rules, intended parents can be left waiting up to a year to be granted a parental order recognising them as the baby’s legal parents, during which period the surrogate remains the child’s legal mother and both parties could potentially renege on their agreement.
Branding the current system “outdated” and “not fit for purpose”, the Law Commissions of England, Wales and Scotland has called for those intending to raise the baby to be legally recognised as its parent from birth.
“This is life-changing for so many people,” said Francis Haugen, who had to wait 10 months with his husband Stuart Armfield for their parental order to come through.
“Ultimately this is all about people who really want to have a family, and the fact that these laws are in place will just make this process so much easier.”
The couple said that “if parents can actually go on the birth certificate from day one, that will just ease everybody’s tension” – and warned that “the law really does need to be changed”.
Describing obtaining the parental order as the hardest aspect of surrogacy, Mr Haugen said there is little information out there on how to go through the parental order which created complications when they didn’t have all the right information when they got to court.
He added: “We were faced with a situation where [their son] Rio became unwell, we were in hospital and if he needed that treatment, we weren’t legally allowed to sign for that treatment.
“His surrogate mother – or, on paper, his legal mother – and legal father – which was her husband, just because they were married – were three hours away, so that was a hard thing and it made us realise that this law really does need to be changed for situations like this.”
Estimating that as many as half of parental orders granted in England and Wales involve surrogacy arrangements carried out internationally, the Law Commission hopes its proposed reforms will reduce the number of people who feel forced to go abroad.
“Unless our really close friend offered, we would never have considered to do surrogacy here in the UK because of the laws,” said Mr Armfield. “We were petrified of something going wrong and us not being in control of that situation. So we actually started our process over in America because they have stronger laws and you feel protected as a couple.”
Charlie Watson, an NHS dietician who also travelled to the United States to have a child born by a surrogate, said that she “absolutely” agrees that the reforms could be life-changing and enable “a lot more people to do surrogacy in the UK”.
But “there needs to be more changes” for surrogacy to be more financially accessible, Ms Watson said, adding: “My IVF wasn’t covered by the NHS because it was going to be into a surrogate, so there needs to be broader changes to NHS fertility coverage, to the cost of fertility treatment, to legal costs – are they going to cap them?
“This is a good first step, but I think for there to be actually equal access, there’s going to need to be broader changes. I still think that the cost of fertility is prohibitively expensive for a lot of people.”
Under the changes, it would still be illegal to advertise that you are looking for a surrogacy arrangement, although lawyers – currently only permitted to offer unpaid advocacy – would instead be allowed to charge for “negotiating, drafting, and advising on surrogacy agreements”.
Ms Watson said: “Opening up [the surrogacy process] and making it more transparent, it then becomes something that people are able to see more and able to do themselves, rather than just thinking ‘well we haven’t been able to get pregnant, we can’t have a baby, that’s the end of it’.”
The Law Commission has also opted not to recommend that legal parenthood granted abroad be recognised in the UK without obtaining a parental order over fears that the risk of exploitation in some countries is “considerably higher” than in the UK.
But it suggests that the relevant government minister “should have the power to recognise legal parenthood granted in other jurisdictions which provided sufficient protection against exploitation”.
Ms Watson, who is still seeking a parental order from the High Court for her child born in the US in October, said this had made “an already expensive process even more” so, adding: “Our surrogate shouldn’t have to go through all this again – we’ve done it all in the US.”
Under the proposals, legally-binding surrogacy contracts between the surrogate mother and intended parents would still be illegal. Instead, parties would sign non-enforceable Regulated Surrogacy Statements to provide “a clear and unambiguous record” of their agreement that the intended parents will be the child’s legal parents at birth, and that safeguarding requirements have been met.
But Ms Watson argued that the government should “establish pre-birth orders”, saying: “Parents need to go into the labour and delivery room knowing that there’s not going to be basically a contest of who the parent is.”
Describing the proposals as “definitely a step in the right direction”, Ms Watson said: “I think just having some sort of paperwork and reassurance that that is in fact going to be the case would be hugely important in the decision of ‘do you do this in the UK or do you do it abroad knowing you’ve got that protection?’”
The review also proposes creating a new independent body to oversee “important screening and safeguarding checks” and offer legal advice and counselling, with all parties supported throughout the process.
