Archers Storyline Highlighting The Need For Change In Surrogacy

Archers Storyline Highlighting The Need For Change In Surrogacy

Popular BBC Radio 4 programme, The Archers is drawing attention to the need for a change in surrogacy law says parenting lawyer Sarah Wood-Heath.

The radio programme has been running since the 1950s and has over 5 million listeners, so is a “significant show in British popular culture” and one that regularly highlights topical issues.

Speaking to Family Law, Wood-Heath, a partner at Clarke Wilmott LLP, has stated that the programme shows the vulnerability of surrogacy agreements breaking down and the difficulty of applying for Parental Orders.

“…at the moment, all surrogacy arrangements in the UK are informal and are based on trust and each side is in a vulnerable position as the Archers storyline correctly reflects.

“The legal uncertainty can take a huge toll on all parties involved.

“The concern that either side might back out – that the surrogate will not hand over the baby or the intended parents renege on the deal – are very real.

“Many intended parents and surrogates do prepare a written agreement which can be helpful to identify concerns and prepare for situations which may arise during the pregnancy.

“However, this document is not enforceable should difficulties arise.”

In the UK surrogacy is becoming more common and an accepted method of building a family. If couples are unable to conceive themselves, either naturally or through IVF, surrogacy offers them an option to still have a child with a genetic link.

The law that governs surrogacy is the Surrogacy Arrangements Act 1985 and provisions within the Human Fertilisation and Embryology Act 2008, however, many see these pieces of legislation as being outdated, offer little support to all involved, including the child and not reflect the reality of the child’s family life.

The law regarding surrogacy has remain largely unchanged for 34 years.

At present, if a surrogate is married, her husband’s name will be added to the birth certificate, unless the husband has not consented to the surrogacy, legislation in itself showing an antiquated view of a woman’s autonomy. If a surrogate is not married, the intended father can be added to the birth certificate and be granted legal rights over the child from birth.

Upon the birth of the child, there are sometimes difficulties at the hospital around whether the baby can be discharged separately from the surrogate. This can be problematic if the surrogate has had complications during labour and is required to stay in hospital, meaning crucial bonding time with the Intended Parent (IP) can be delayed, and should a surrogate wish to distance herself immediately from the baby, this would not be possible or the baby staying in a separate ward.

Currently, any arrangement between the surrogate and IPs have no enforceability, meaning either party can change their minds at any point during the pregnancy or even once the child is born.

This lack of clarity and certainty can dissuade both potential surrogates and people looking at the option of surrogacy, or push IPs to look abroad for help, as places such as the USA have more enforceability when it comes to arrangements.

The Law Commission has estimated half of IPs chose to go abroad.

Once a child has been born through surrogacy, IPs can apply for full legal rights to the child, so long as they meet certain requirements under the HFEA 2008:

  • The surrogate must give her consent
  • At least one IP must be biologically related to the child
  • It must be in the best interests of the child
  • One or both of the parents must be domiciled in the UK
  • The court must agree to authorise payments if more than reasonable expenses has been paid

This raises issues for parents who have used donor eggs and sperm and those who are living in the UK but not domiciled here.

Even if IPs can apply for a Parental Order, there can then still be problems from the delays, especially if the IPs wish to take the child abroad or consent from medical treatment is needed.

Between June and October 2019 the Law Commission ran a consultation, ‘Building Families Through Surrogacy: A New Law’, to consider the regulation of surrogacy, taking into account the rights of all involved.

The consultation looked at key proposals, including:

  • Creating a new pathway that would allow the intended parents to become the legal parents at birth.
  • Introduce specific regulation for surrogacy arrangements and safeguards such as counselling and independent legal advice.
  • Allowing international surrogacy arrangements to be recognised in the UK

The results from the consultation are not due until 2021 which can be a long wait for those currently looking at surrogacy as an option, especially as it will take even longer to pass any bill that may change the legislation.

Natalie Gamble, founder of both leading surrogacy law firm NGA Law and non-profit surrogacy agency Brilliant Beginnings and longstanding campaigner for surrogacy law reform, says that law reform is welcome and long overdue.

“We are delighted that the Law Commission has made positive proposals to enable children to be recognised in their intended families from birth, and to introduce better safeguards to support the UK’s strong culture of relationship-based altruistic surrogacy. We support the Law Commission proposals, but think they should go further in some areas, for example by giving intended parents more certainty that a surrogate cannot change her mind and by allowing more children (not just those which fall within the new pathway) to have secure status in the right family from birth. We also think that the law on payments to surrogates needs to be realistic and to acknowledge the range of options around payments we already see on the ground.”

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