Calls for law reform following surge in surrogacy during pandemic

Surrogacy laws do not meet the needs of modern families, a lawyer has warned, following increased demand for surrogacy during covid-19. 

Victoria Maxwell, a family law specialist at Bishop & Sewell said that the UK’s surrogacy laws, which date back more than 30 years, are “woefully out of date”.

The Surrogacy Arrangements Act 1985, supplemented by provisions under the Human Fertilisation and Embryology Act (2008), is controversial.

Maxwell said: “At present, when the surrogate mother gives birth, she is considered to be the legal mother, regardless of whether she has a genetic relationship with the child. Intended parents therefore have to apply to the English courts for a parental order to transfer the legal parentage from the surrogate mother (and her husband if she is married) to the intended parent or parents.”

As commercial surrogacy is prohibited in the UK, surrogates cannot be financially compensated for carrying a child.

Under existing law, the intended parents are only entitled to cover the surrogate’s ‘reasonable expenses’, such as medical fees, loss of earnings and maternity clothes. 

Furthermore, surrogacy contracts are legally unenforceable. Maxwell says this leaves intended parents vulnerable until a parental order is made.  
 
“The majority of intended parents that instruct me have struggled to find a surrogate in the UK”, she added, “which I believe is largely attributable to the fact that advertising or arranging a surrogacy agreement in the UK in return for a fee is unlawful.
 
“Against this backdrop, it is not surprising that there are an insufficient number of surrogates in the UK. Large numbers of UK residents are therefore looking overseas to countries which offer legally recognised and commercial surrogacy.”
 
However, she warns of the risks of turning to a country lacking regulation and a statutory framework governing surrogacy. 

“This can cause unnecessary complications and delays for the intended parents when they return to the UK and apply for a parental order,” she said.

The Law Comission reviewed surrogacy laws and, in 2019, concluded they are outdated. It recommended that the law should be improved to better support the child, surrogates and intended parents.