Call for legal clarity as surrogacy rises by 78 per cent in five years

A dramatic change in British family life over the last two decades and better understanding of the law has led to an increase in parents having surrogacy agreements approved by the courts

Analysis of official figures by one of the country’s leading family law firms has found that the number of parents granted a court order after having children by a surrogate rose by 78 per cent in the past five years.

The research, conducted by Hall Brown Family Law, discovered that the number of Parental Orders – transferring responsibility from surrogates to Intended Parents – had increased by 15 per cent during 2019 alone.

Senior Solicitor Melanie Kalina described how although the data underlined a “great and very rapid cultural shift”, more needed to be done to protect those involved

“The figures show just how much progress has been made since the Baby Cotton case divided British public, legal and political opinion in the mid-1980s.

“Since then, of course, we’ve been forced to rethink the very idea of what constitutes a family, due to a sharp decline in marriage, an increase in cohabitation and the legal status afforded to same-sex relationships.

“Other factors, including a drop in the availability of publicly-funded IVF treatment in England, have also had an impact on the number of people who want to start families of their own turning to surrogates for help.

“These figures demonstrate that families who do so, surrogates and their advisors all appear more able than ever before to meet the legal requirements which are in place.

“It is still not totally without an element of controversy, however.

“That’s one reason why we arguably need urgent reform of the law to better reflect the situation and to protect the rights of all those entering into a surrogacy agreement – intended parents, surrogates and children alike.”

Ms Kalina was speaking after studying figures on Parental Orders published by the Ministry of Justice

Even though fewer applications for the orders were made last year than five years before (582 in 2019 compared with 586 in 2014), the number of orders actually granted increased from 242 to 430.

In addition, the most recent figures issued by Britain’s fertility regulator, the Human Fertilisation and Embryology Authority, showed that the NHS funded only 35 per cent of IVF cycles in England in 2017 – the lowest rate since it began collecting such data in 2009.

It was also claimed that some private sector clinics were charging patients up to £20,000 per cycle

Publication of the Ministry of Justice data comes just months after the end of a Law Commission consultation about whether and how current surrogacy law should be reformed.

The 1985 case of British surrogate Kim Cotton, who was paid £6,500 to give birth to a child on behalf of an American couple, led to the introduction of the Surrogacy Arrangements Act six months later.

It was amended in 2008 by the Human Fertilisation and Embryology Act, which requires intended parents to wait until a child carried on their behalf by a surrogate has been born before they can apply to a court to formally become its parents.

The Law Commission has outlined how that process can take months to complete and “affects the intended parents’ ability to take decisions about the child in their care”.

Instead, the Commission has proposed that there should be a ‘surrogacy pathway’ recognising their parental responsibility from birth.

Ms Kalina argued that such a reform was “long overdue” and would mean the potential for intended parents and surrogates to encounter difficulties being reduced.

“The current legal framework is not particularly straightforward for anyone except those professionals familiar with the issue to follow.

“Although more individuals are managing to do so with assistance, we should remember that one-quarter of all those who apply for a Parental Order do not succeed.

“What is needed now is more clarity and a greater appreciation of the sort of problems which can arise.

“People who wish to start families of their own via surrogacy require support and guidance rather than unnecessary obstacles put in their way.

“Equally, surrogates need to be able to access the right information and care to prevent avoidable delays and difficulties.”

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