Expert Hopes Challenges Posed By Process Will Be Tackled

Welcoming a new child into the world is undoubtedly an exciting moment for any parent, but for those who have gone through the process of surrogacy the feelings that emerge after a birth can often be tainted with uncertainty.

While the intended parents may be filled with joy at the prospect of caring for a precious new life, they may also face some anxieties and concerns due to the current legal situation around the specifics of the child’s conception and birth.

Here, Irwin Mitchell family law expert Kathryn Evans explains what those going through surrogacy currently face and why the time is right for some major changes.

Where we stand

A number of countries across the world give automatic legal rights to the intended parents of a child born through surrogacy. However, that is not the case in England and Wales – even if the sperm and egg of the intended parents is used in the process.

Kathryn outlines: “Intended parents here need to apply for a parental order if they want to try to ensure they have full legal rights in relation to the young person involved. While this process has traditionally had to involve two parents, it was changed last year so that single parents are now allowed to apply for them too.

“However, there are challenges raised by the process of applying for parental orders. For example, strictly-speaking, they can only be applied for within the first six months of the child’s life and can take several months to go through. While not having one would cause major issues, the current situation means that even after applying for an order parents could face a long wait for confirmation. This in turn may lead to some uncertainty around who has legal responsibility for the child involved.

“When going through the process, it is also important to consider issues related to the remuneration of the surrogate mother, which should not go beyond any reasonable expenses linked to having the baby. This is important even if surrogacy has taken place in a country where commercial payments to surrogate mothers are allowed.”

Time for change

Official figures have suggested that the number of couples considering surrogacy has risen significantly in recent years and that may well be a reason why many now feel it is time for change.

The current legal position regarding surrogacy raises a host of issues, from the fact that parental order applications can only be made after a child has been born, to a general lack of regulation and clarity around surrogacy payments. Fortunately, those topics were raised by the Law Commission ahead of their consultation into the issue last year.

Kathryn says: “The consultation was undoubtedly a welcome step forward on this issue and it did raise proposals which could have a significant impact on some of the matters which are often mentioned when it comes to surrogacy.

“For instance, it looked at the idea of introducing a pathway which would mean the intended parents become legal guardians of a child from the moment of birth. In addition, it included ideas for regulation and support designed to reduce the risk of complications emerging within an arrangement.

“The Law Commission is now producing a final report with its recommendations for the future, so it will be intriguing to see what emerges in the coming months. We also hope the report will show further thought  and consideration has been given to how the children born through surrogacy come to learn of and understand their origin stories, to ensure their future welfare and emotional well-being are protected.”

The importance of advice

For now though, Kathryn has one simple piece of advice for those who are either going through the process of surrogacy or are considering their options for the future.

She explains: “Considering everything surrounding the current legal situation, it is fair to say that legal advice at the earliest possible stage is absolutely vital. Getting such support from the outset will ensure the eventual parents are able to enjoy their precious time with the new addition to their family rather than enduring an unnecessarily prolonged and stressful legal process once the little one has arrived.”