Surrogacy Consultation Looking At Law Closing Soon

Lawmakers should prioritise a fairer process for parents opting for the surrogacy route, say expert family law solicitors.

The Law Commission is currently running a consultation on surrogacy law, including feedback on how parental orders should run amongst other areas of the law. The consultation closes on 11 October.

Parental orders were in the spotlight earlier this year as single parents were allowed to make an application for them, with the process having formerly required two parents to make the application.

The amount of couples opting to choose surrogacy has shot up in recent years: parental orders made following the birth of a child through surrogacy has increased from 121 in 2011 to 368 in 2018. However, the current law lags behind in safeguarding the arrangements.

An Irwin Mitchell family law expert’s recent experiences in court for a parental order gave cause for concern when it became clear that the court-appointed legal advisor allocated to the application had not encountered an application for a Parental Order before and did not understand the process.

Expert Opinion

“As surrogacy cases increase and continue to come through the family courts, the consultation on surrogacy law reform could not come at a better time.

“We recently had a scenario where we were before the court and we were literally reading the law out due to the lack of awareness of these types of applications. Had my client tried to make the application themselves, the errors would have jeopardised the application’s success and the validity of the parental order.

“It also goes to show that surrogacy law is still considered to be fairly niche and can be misunderstood even by experts who have not worked in the area before. Good legal advice is required at an early stage.”

“When you consider the fact that in many cases either one or both of the applicants have a biological link to the child, having to make an application to become the legal parents seems a convoluted, stressful and daunting process which will take months to resolve.

“This causes huge uncertainty along the way as they are raising their biological child while the surrogate and in some cases the surrogate’s spouse are recognised as the legal parents of the child.” Emma Hubbard - Associate Solicitor

There has been a sharp rise in the amount of litigants-in-person: during the 2017/18 financial year only 36% of parties in private law cases were recorded as having legal representation, whereas in the 2012/13 financial year the number was at 58%.

Emma continued: “It is hoped through the Law Commission consultation, changes can be considered which recognise the legal rights of the intended parents from the birth of the baby, making it a fairer system and allowing these families to live as they intended and as a legally recognised unit from the start.”