Courts, Baby Cotton And The Normalising Of Surrogacy 

Published on 06 January, 2021 | Melanie Kalina

Throughout this year of change, we’ve doubtless all heard references to ‘the new norm’.

Many such remarks have been in relation to the fact that so many of us now work from home or may have to wear face masks and socially distance for some time to come.

Yet there is another way in which we have seen other previously accepted wisdoms turned on their heads during 2020.

Some readers of this ‘blog may remember that I’d written back in April about a Supreme Court judgement in favour of a woman left unable to have children after treatment for cervical cancer (https://hallbrown.co.uk/a-step-change-for-surrogacy/).

The Court determined that the hospital which had been found negligent in dealing with two smear tests and two biopsies should foot the bill for her to have a child via a surrogate in the United States.

I remarked at the time that it underlined how social and judicial attitudes to surrogacy were continuing to change. Surrogacy, I wrote, “is now considered a more legitimate way to start a family”.

It’s now even more possible to deduce just how much more accepting society is of surrogacy from official statistics detailing the number of parental orders made in recent years.

A parental order transfers responsibility from a surrogate to Intended Parents, the individuals on whose behalf she has carried the child in question.

That’s because Intended Parents must wait until a child carried on their behalf by a surrogate has been born before they can apply to formally become its parents.

Figures published by the Ministry of Justice show that the number of parental orders has increased by 78 per cent in the past five years, despite a reduction in the number of applications.

As I’ve been telling Emily Dugan, the Sunday Times’ Social Affairs Correspondent (https://www.thetimes.co.uk/article/a5a8dbd8-4ac5-11eb-81f9-1b786036a268?shareToken=44ff242296d7a0e6cf9d9ffaf1c49d7b), I believe that’s down to a cultural shift which is in sharp contrast to the mid-1970s.

An outcry when it emerged that a British surrogate, Kim Cotton, was paid to give birth to a child on behalf of an American couple subsequently led to the introduction of the Surrogacy Arrangements Act six months later.

Despite a later piece of statute – the Human Fertilisation and Embryology Act in 2008 – there are common concerns that current surrogacy law isn’t keeping pace with societal change.

It’s a point which is at the heart of a recent consultation by the Law Commission as to whether there should now be a ‘surrogacy pathway’ to recognise their role of Intended Parents from birth rather than their having to wait for court approval.

Such changes, although long overdue, in my opinion, are not likely to happen soon. The Commission will not produce draft legislation until 2022 with any Bill taking still more time to navigate the various stages of the parliamentary process.

However, if they provide the kind of clarity and appreciation of the sort of problems which can arise in surrogacy arrangements, they are worth waiting for.

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

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