THE POPE, PAUSE AND PROBLEMS ON THE PATHWAY TO SURROGACY LAW REFORM 

Published on 01 May, 2024 | Emma Dewhurst

Religion, so data would suggest, is less significant in the way that British couples now tend to formalise their relationships than in previous generations.

The latest marriage figures from the Office for National Statistics (ONS), for instance, show that just under 15 per cent of opposite sex couples married in religious ceremonies during 2020 (https://www.ons.gov.uk/peoplepopulationandcommunity/birthsdeathsandmarriages/marriagecohabitationandcivilpartnerships/bulletins/marriagesinenglandandwalesprovisional/2020).

That is less than half the proportion at the turn of the century and, in fact, is the lowest recorded percentage on record.

Religion is still, however, of immense significance for many individuals of many different faiths.

It is why a declaration issued recently by the Vatican on behalf of Pope Francis is worth taking note of.

The document underlines what is described as “the gravity and centrality of the theme of dignity in Christian thought” (https://press.vatican.va/content/salastampa/en/bollettino/pubblico/2024/04/08/240408c.html).

Nevertheless, its contents have caused a stir because of their attitude to surrogacy, among other topics.

The Pope argues that it “violates” the dignity of both women and children, and calls for the practice to be outlawed.

It follows his previous description of surrogacy as being “despicable” (https://www.bbc.co.uk/news/world-europe-68761487).

Various commentators, such as The Times’ Jenni Russell, have suggested that his objections have merit, claiming that surrogacy is “exploitative and harmful” (https://www.thetimes.co.uk/article/140785ca-e2a8-4810-a371-6b906a478636?shareToken=32b2f76d9be9bd645faba34ac7253e47).

Each year, many couples in the UK decide that surrogacy is the only viable way to start a family for a number of reasons.

Those who do are made aware that whilst the kind of commercial arrangements mentioned by the Times’ article are legal in countries such as the United States, they are expressly not permitted under the law which applies in England and Wales.

Instead, only altruistic, non-commercial surrogacies are allowed here in order to guard against the possibility of exploitation.

In practice, only reasonable costs, including medical bills, maternity clothing and other pregnancy-related expenses, can be paid.

Furthermore, receipts need to be retained as proof that larger sums which might give rise to suspicions that the law has been broken haven’t been handed over.

The relevant laws in the UK are the Surrogacy Arrangements Act 1985 and certain provisions of the Human Fertilisation and Embryology Act 2008.

As the latest figures from the Ministry of Justice demonstrate, demand for surrogacy has increased considerably in recent years (https://www.gov.uk/government/statistics/family-court-statistics-quarterly-october-to-december-2023/family-court-statistics-quarterly-october-to-december-2023#main-points).

Intended parents only become recognised as the legal parents of children born via surrogacy once they have been granted something known as a Parental Order.

The number of Parental Orders issued by courts in England and Wales has increased more than threefold in the last decade – up from 158 in 2013 to 505 last year.

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

Yet some difficulties do remain.

Last year, the Law Commission published recommendations for legal reform, related not to the financial aspects of surrogacy but the legal process by which parental responsibility is conferred (https://lawcom.gov.uk/project/surrogacy/).

It explained that obtaining a Parental Order can take up to a year, during which time the surrogate remains the child’s legal parent – a situation which, the Commission noted, “doesn’t reflect the reality of the child’s family life”.

The tension identified which it alluded to was the central element in a Court of Appeal ruling last year in a dispute between intended parents and a surrogate who developed an attachment to the child that she had carried on their behalf (https://www.judiciary.uk/judgments/c-a-child-2/).

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

The Government, however, has more recently indicated that “while we appreciate the importance of this work, parliamentary time does not allow for these changes to be taken forward at the moment” (https://www.independent.co.uk/news/uk/government-maria-caulfield-law-commission-surrogacy-wales-b2445264.html).

That response means that the certainty which the Law Commission and intended parents had hoped to see will not be forthcoming – at least not yet.

In the meantime, couples will continue to press ahead with surrogacy arrangements within the current framework.

The prevailing stasis arguably increases the importance for couples considering having children by a surrogate to seek legal advice before they embark on the process.

Whilst lawyers like Hall Brown cannot intercede when it comes to the details of their relationship with a surrogate, we can put would-be parents in touch with reputable, specialist not-for-profit organisations, such as Surrogacy UK, which can do so.

Furthermore, we can and do deal with applications for Parental Orders by which intended parents become legal parents.

Although there are those people who have their own reasons for objecting to surrogacy, it is now a perfectly valid and legal way for individuals to fulfil their desire to be a parent.

It is essential, though, to ensure that seek guidance to ensure that they act according to the law and do not inadvertently create problems for themselves, their surrogates and their children.

ENDS