More recently, many more people are using fertility treatment to conceive; particularly same sex couples, single women and surrogates (Human Fertilisation and Embryology Authority data).
This echoes a societal shift in so far as relationships, the formation of families and lifestyles are concerned. As such, there needs to be more emphasis on the development and evolution of the law and sector generally.
The use of fertility treatment and surrogacy were traditionally used by heterosexual couples struggling to conceive but are now also common among the LGBT+ community. Times are changing and whilst many more people are having children using a surrogate, the laws around surrogacy are outdated and no longer fit for purpose.
Surrogacy is a popular option for male same sex couples and initial considerations will include who will be biologically linked to the child and what type of surrogacy will be used. There are generally two types of surrogacy, being gestational and traditional. With gestational surrogacy, embryos are created at a fertility clinic using a donor egg (or if one of the couple is transgender, they may be able to provide the eggs) and sperm from the intended biological father, which are then transferred to the surrogate. With traditional surrogacy the surrogate uses her own egg and sperm from the intended biological father. Conception takes place using IVF or artificial insemination.
Parents opting for surrogacy are referred to as “intended parents”. As things stand, the surrogate, regardless of whose eggs are used, is always the first legal parent. This clearly does not reflect the intentions of the parties to a surrogacy arrangement. The second legal parent will depend on several factors.
Once the baby is born and is in the care of the intended parents, they need to apply for a parental order within six months, which once made, transfers parentage to them. The court will only make a parental order if it satisfied that it is in the child’s best interests to do so and if certain criteria are met (section 54 Human Fertilisation and Embryology Act 2008). For example, one of the intended parents, must have a biological link to the child. If the conditions are not met, the intended parents may have to find an alternative legal route to go down, such as adoption.
The Law Commission carried out a full consultation on surrogacy, which ended in October 2019 and is expected to produce a final report with law reform recommendations and draft bill, in 2022. One of the most significant issues identified is that the intended parents are not automatically the legal parents at birth and one of the Law Commission’s key proposals addresses this. It is likely that the draft bill will provide for the intended parents to automatically be the legal parents at birth, with the surrogate retaining a short period of time to object, so reversing the onus.
A change in the law is long overdue with the current legislation not adequately providing for the child, parents or the surrogate, leaving the handing over of the baby down to trust and thereafter creating a stressful limbo situation, prior to the intended parents being granted a parental order. The legal position during that period does not sufficiently reflect the reality of the situation and the intended parents may not have the legal right to make important decisions for their child until the parental order is granted. It is so important that legal advice is sought, as there are things that can be done to mitigate the situation.
So, whilst major law reforms are on the horizon, intended parents will in the meantime be left to navigate the current legal minefield, which is likely to add to their stress and anxiety at such a monumental moment in their lives. Getting the right support and legal advice is paramount to navigate their way through.