SURROGACY AND ‘A CAUTIONARY REMINDER’ 

Published on 05 November, 2024 | Emma Dewhurst

Regular readers of the Hall Brown ‘blog will have noticed that certain themes tend to feature on a repeated basis over time.

That reflects the casework which we handle as much as changes in the law and significant judgments.

One topic which continues to generate all three is surrogacy.

The fact that it is regarded as a more frequent and accepted way for people to start or add to a family is amply demonstrated by figures published by the Ministry of Justice (MoJ) in September (https://www.gov.uk/government/statistics/family-court-statistics-quarterly-april-to-june-2024).

Individuals wishing to be considered legal parents following a surrogacy arrangement need to be granted something known as a Parental Order.

The MoJ numbers revealed that there were 513 Parental Orders made in 2023 – up 37 per cent on the number only five years before (374) and a rise of 225 per cent on the figure for 2013 (158).

It shows the degree to which intended parents, surrogates, the courts and the legal profession are all more informed about what is entailed.

However, difficulties still remain, as made clear by a recent case in which Hall Brown acted together with Christie O’Connell, a barrister at 1 Hare Court chambers, on behalf of a same-sex couple applying – successfully – for a Parental Order having entered into an agreement with a surrogate based overseas (https://www.judiciary.uk/wp-content/uploads/2024/10/Re-Z-Foreign-Surrogacy.pdf).

Their application, said Judge Theis, who heard the matter, was “an important cautionary reminder of the need for those embarking on surrogacy arrangements, particularly those that cross a number of different jurisdictions, to carefully consider, in advance, the arrangements, consequences and implications”.

Although the circumstances of our client’s case were very specific, Judge Theis described how there were a number of other cases in which basic details about surrogacy arrangements were not known by those involved.

Whilst she acknowledged intended parents’ desire to have a family, she said that “it should not be at the expense of placing the much wanted yet to be born child at risk of harm”

At the heart of Judge Theis’ decision was her insistence that “the message needs to go out loud and clear that when intended parents embark on these surrogacy arrangements they need to ensure there is clarity about what is proposed”.

In an effort to do provide just that, she set down a list of 16 points, which she believed couples need to consider before entering into a surrogacy agreement.

They cover things such as the relevant law in the respective countries where the surrogacy agreement is made and where the child is to born, issues of nationality and the information given to surrogates and intended parents.

Judge Theis stressed that the list in itself was not everything. She insisted that “intended parents to seek legal advice from a solicitor specialising in this area before embarking on any such arrangements, especially if it involves another jurisdiction”.

I have no doubt that the guidance will be of immense help and not least because it comes at a time when the Government is considering whether to update surrogacy laws.

In March last year, the Law Commission recommended legal reform, relating both to the financial aspects of surrogacy and the legal process by which parental responsibility is conferred (https://lawcom.gov.uk/project/surrogacy/).

It proposed a new “pathway”, a regulatory route for domestic surrogacy under which intended parents would become parents of surrogate children from birth.

Although Rishi Sunak’s administration appreciated “the importance of this work”, it explained that there simply wasn’t the parliamentary time to act on the Commission’s suggestions (https://www.independent.co.uk/news/uk/government-maria-caulfield-law-commission-surrogacy-wales-b2445264.html).

Nevertheless, in a written Commons’ answer just a fortnight ago, it was revealed that the

Parliamentary Under-Secretary of State at the Department of Health and Social Care,

Baroness Merron, will meet with the Law Commission shortly “to discuss its report and draft bill on surrogacy, and to inform consideration of the Government’s next steps” (https://questions-statements.parliament.uk/written-questions/detail/2024-10-09/8352).

Given the usual pace of legislative change, any reform of the rules governing domestic or international surrogacy agreement may still be some way off.

In the meantime, Judge Theis’s remarks and the importance of intended parents taking legal advice should be heeded.