Pandemic And Parenthood: The Impact Of Covid On Surrogacy 

Published on 18 February, 2022 | Catherine Bell

The imminent removal of the last lockdown restrictions in the coming weeks provides us with an opportunity to reflect on the impact which the pandemic has wrought over the last two years.

As well as the terrible health consequences, households across Britain and the wider world have, of course, had to confront enormous financial and professional uncertainties.

In my opinion, however, we cannot overlook how those same restrictions have affected efforts to establish and protect families.

Soon after the first restrictions were introduced, the Family Court decided to prioritise the cases with which it dealt – steps which meant that matters not regarded as urgent were subject to delay (https://www.judiciary.uk/wp-content/uploads/2020/04/The-Remote-Access-Family-Court-Version-4-Final-16.04.20.pdf).

One strand of family work among those hit was that of surrogacy.

In the years immediately before the pandemic, more couples had come to view

surrogacy as a perfectly legitimate way to start a family, as my colleague Melanie Kalina told the Sunday Times last year (https://www.thetimes.co.uk/article/a5a8dbd8-4ac5-11eb-81f9-1b786036a268?shareToken=f9bec54b0295f8314d78d7b37621de9b).

However, figures published by the Ministry of Justice show that progress has been checked by the pandemic (https://www.gov.uk/government/collections/family-court-statistics-quarterly).

Those wishing to have a child by a surrogate must obtain something known as a parental order.

It transfers parental responsibility from the surrogate to the Intended Parents – the individual or couple on whose behalf she has carried the child.

Even though the number of applications for parental orders increased by 30 per cent between 2018 and 2019, it fell by five per cent over the following 12 months –  a period which included, of course, the start of lockdown.

Various commentators have remarked in recent weeks about whether the reduction was merely a temporary pause or a sign that surrogacy was falling out of favour.

I certainly do not think that the latter suggestion is true.

In fact, having considered the data in detail, I think that the underlying pattern indicates that there remains growing support for surrogacy.

We need only consider, for instance, the response to Labour MP Liz Kendall welcoming her first child via a surrogate last month (https://news.sky.com/story/labour-mp-liz-kendall-bursting-with-love-and-happiness-after-welcoming-son-henry-via-surrogate-12522297).

Figures for the 12 months to the end of June last year show that there were 490 applications for orders made – a rise of almost three per cent on 2020 (https://www.gov.uk/government/statistics/family-court-statistics-quarterly-april-to-june-2021/family-court-statistics-quarterly-april-to-june-2021#divorce).

Of those applications which were made, 91 per cent were approved – again, up three per cent on the year before.

What I believe that demonstrates is that the standard of preparations for surrogacy on the part of all concerned continues to improve and is being recognised by the courts asked to adjudicate on the merits of individual applications.

I should perhaps point out that an application for a parental order is almost the end of the surrogacy journey for Intended Parents.

Even so, a straightforward surrogacy can still take two years to reach that stage. It naturally takes time to find a suitable surrogate and – let us not forget – nine months for a pregnancy.

Whilst making parental order applications can be relatively simple, depending on their individual circumstances, it can still take 12 months for an order to be granted. To that can now also be added the delays caused by the impact of the pandemic on the work of family courts.

By making the entire process even longer, the effect of Covid-19 on the operation of the courts has made things more stressful and more uncertain for everyone involved.

As the law stands, Intended Parents must apply for a parental order within six months of a child being born.

Nevertheless, courts are able to consider applications outside that time limit if it can be shown that the pandemic was in some way responsible for the delay.

In a 2019 consultation about how the legal framework around surrogacy might be reformed, the Law Commission acknowledged that delays already inherent were one of a number of

“significant problems” (https://www.lawcom.gov.uk/project/surrogacy/).

A report arising from that opinion-taking exercise is due later this year, accompanied by draft legislation which the Government has asked the Commission to prepare.

Of course, the speed of reform of family law almost always lags behind the pace at which society itself moves.

Yet if we fail to accelerate the glacial rate at which official attitudes to surrogacy have been reflected on the Statute Book, the cost will be borne by those households desperate to pursue an increasingly popular route towards a meaningful family life.