Good news for single people wanting to use surrogacy as a route to parenthood as changes in the law mean they will be able to access parental orders for the first time, Surrogacy UK has announced
Parental orders are the legal mechanism in which parenthood is transferred from a surrogate to the intended parents and have increased by nearly 500 per cent in the past ten years, according to Ministry of Justice figures.
Previously only couples were able to apply for parental orders, but not sole applicants.
The campaign and support group has said there is now much more acceptance to different family forms than in previous eras and more openness to infertility and its impact on those desperately seeking to become parents.
This is largely credited to celebrities being more open about their own family building, with stars such as Elton John, Kim Kardashian and in recent months, British diver Tom Daley and his husband Dustin Lance Black talking about their surrogacy journeys.
Surrogacy UK has said UK law has remained relatively unchanged, resulting in legislation that is outdated.
But this is about to change. Parliament has had a remedial order put before it for a second time, intended to allow sole applicants in surrogacy cases to become legal parents via a parental order. It will create equality for single parents as well as people in a relationship where their partner does not want to become a legal parent.
The remedial order was prompted by a court case in 2016 in which the President of the Family Division of the High Court of England and Wales ruled that single people not being able to apply for parental orders is incompatible with fundamental human rights.
This case was brought against the Government by a father who was unable to apply for an order to secure his child’s identity. It is hoped that the new remedial order will change the law to remove some of the discrimination entrenched in the current legislation and bring the law in line with other forms of assisted reproduction (although intended parents that do not have a genetic connection to the child will still not be able to apply).
Single man, David Watkins, said: “Children deserve to be raised by people that love and want them and those born out of surrogacy arrangements couldn’t be any more wanted and loved.
“I am so pleased the change in the law will finally allow me and many others the opportunity to become fathers and mothers. I know I will be a loving and grateful father. This remedial order is critical in my journey to fatherhood.”
Emma* lost her womb as part of cancer treatment, she said: “I have always known I would love to be a mother. I am financially secure and have a wonderful network of family and friends. Before my operation I could have become a single mother but now that I need the help of a surrogate this option is not available to me. It is extremely frustrating and completely discriminatory. The remedial order gives me hope that my dream of being a mother might finally come true.”
More change afoot
This year the Law Commission of England and Wales and the Scottish Law Commission started a project on surrogacy, which will include a public consultation in 2019 and should result in a new Surrogacy Bill being laid before Parliament in 2021. Andrew Percy MP chairs an All Party Parliamentary Group on Surrogacy that was set up to look into the problems with surrogacy laws.
He said: “Surrogacy law is currently outdated and inadequate, and fails to represent the reality of modern day surrogacy in the UK and the changed perceptions of family. Moreover it is largely based on outdated assumptions and myths about who participates in surrogacy and why. Surrogacy helps create families for couples and individuals who might otherwise not have the option of raising a family. It is time we updated the law in this area. This is why I set up the APPG on Surrogacy. I will continue to work through the APPG to make sure that we bring the law into line with modern social realities and look forward to working with the Government and the Law Commission to this end.”
Surrogates also hope for further legal change, arguing that at present the law does not reflect how they feel.
“The parents should be recognised as the parents”, says Sarah Jones, a four times surrogate and Chair of Surrogacy UK.
“Surrogates don’t see that they are giving a baby away; they are handing a child back to its parents. We do not want the risk that the parents could walk away and leave us with financial and moral responsibility for a child that isn’t ours. We do this because we want to help create families and the law should recognise that whilst we care deeply, we are not the mothers. The children have a parent or parents who love and care for them and we want them to be treated properly under the law.”
In the UK the conditions of a parental order require that only reasonable expenses are paid to a surrogate, however a High Court judge may retrospectively authorise excessive payments where the child’s best interests require it.
Research by Dr Kirsty Horsey, of the Kent Law School and member of the SUK working group on law reform surveyed surrogates’ and intended parents’ views on legal reform. She said: “Surrogates and intended parents were largely against any move towards a commercial model in the UK. They were, however, supportive of changes to the parental order system and a review of the laws around advertising. Most people felt very proud of their involvement in surrogacy and there tended to be positive and ongoing relationships between surrogates, intended parents and children.”
*Names have been changed to protect identity