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Pros and cons of surrogacy in the UK

A proposed major reform of the UK’s surrogacy laws could see intended parents declared as the legal parents of a surrogate child at its birth.

In March, a joint report by the Law Commission of England and Wales and the Scottish Law Commission said the almost 40-year-old current law “does not work in the best interests of any of the people involved”.

Currently, the intended parents raising the baby have “no legally recognised relationship” and “cannot make any decisions over the child”, said Sky News, until at least six weeks after the birth and when a court grants a parental order. The surrogate parent, who is the legal parent at birth, must also provide permission for a parental order to be granted.

Under the proposed new law, the “scrutiny of the surrogacy arrangements would start pre-conception” and intended parents would not need to apply for a parental order, said The Guardian. The surrogate parent would, however, be able to withdraw consent up to six weeks after the birth, although under the new law, a judge could overrule and award a parental order if they deemed the “welfare of the child required it”.

While the government must now consider whether to introduce the committee’s recommendations as law, here are the pros and cons of surrogacy in the UK.

1

Pro: getting more accessible

There has been a “huge increase” in the number of people putting themselves forward as surrogate mothers, said The Independent. Volunteer numbers for the charity SurrogacyUK were “soaring to record levels” in 2021 and 2022, with the number of surrogates far outweighing the number of intended parents. The charity said it was a “huge shift” in previous trends, largely due to “increasing press coverage” and surrogacy being more “prominent in popular culture”.

2

Con: no formal arrangement

Even if the intended parents are the biological parents of the child, a surrogacy arrangement is not currently legally enforceable in the UK, leaving “both surrogates and intended parents feeling unprotected and potentially vulnerable”, said The Independent. Under current law surrogacies “largely rely on friendship agreements” and rarely on “formalised contracts”. There’s “no legal obligation to compensate surrogates for expenses”, the paper said, potentially leaving volunteers out of pocket, while the surrogate mother would be able to withdraw consent and keep the child.

3

Pro: profiting is prohibited

In the UK, surrogacy is viewed as altruism and a “gift from one woman to another”, said the BBC, which is why it is illegal to profit from a surrogacy arrangement. Money can only be handed over on an “expenses-only basis”.

Surrogacy laws vary hugely from country to country, and in many of those that allow unregulated commercial surrogacy, there are significant “child welfare concerns” as well as “examples of surrogate mothers being exploited”, particularly those who are “financially and socially vulnerable”.

4

Con: complex legal process

The parents who intend to bring the child up must “currently wait at least six weeks to become the legal parents” after the birth but in reality, the legal process can be even longer, taking “up to a year to go through the courts”, The Guardian said.

One couple viewed the fight to acquire a parental order as the “biggest challenge they faced” in the surrogacy process, said The Independent, and it meant they were unable to make “critical decisions regarding the medical treatment or care” of their son.

5

Pro: not just for couples

A change to surrogacy laws in the UK in 2019 ended a restriction that allowed only couples to seek parental orders. It has “never been unlawful in the UK for a single parent to conceive a child with the help of a surrogate”, but until 2019 single men or women were unable to become the legal parent of their child, said legal firm Bindmans.

6

Con: not enough protections

The new proposals by the Law Commission cater “to the desires of adults with a vested interest in surrogacy” rather than “child welfare”, wrote Sonia Sodha in The Observer. Any checks on potential parents (who would become legal parents if the new law is approved) are “light-touch” and could be carried out by those with little or no “knowledge or experience of child safeguarding”.

The commission’s proposals are “jaw-droppingly naive”, she wrote, and while couples can conceive through IVF and naturally with few checks “surrogacy is the only route through which a single man as a sole parent can create a biological child”, and therefore more stringent checks should be in place.

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