Welcoming surrogacy opportunities in England and Wales

BioNews readers may have seen the news reports on surrogacy last week (see BioNews 1114) which showed that there has been an almost fourfold increase in the numbers of parental orders over the last decade.

Parental orders are the court order used to transfer legal parenthood from the surrogate (and often her spouse or partner) to intended parents following a surrogacy arrangement. In 2011, 117 parental orders were granted in England and Wales, compared to 413 in 2020. In addition, the proportion of same-gender couples obtaining parental orders in 2020 had risen to around one third, up from around a quarter in 2011.

Parts of the same report which didn't make the news showed that over the last decade most parental orders were granted to parents who undertook surrogacy in England and Wales, with those having entered surrogacy arrangements in the USA taking second place. It also showed that the number of parents going to India and other southeast Asian destinations for surrogacy has declined, though increased travel to destinations such as the Ukraine, Russia, Georgia for surrogacy and emerging markets in Africa may raise similar concerns for us now, regarding the quality of the service provided and the treatment of women.

Surrogacy, as a means of creating families for those who cannot do so in other ways, has become increasingly socially acceptable, popular, and accessible in the UK. Possible reasons for this include the increased ease of obtaining information in a digital era as well as changing social attitudes about alternative family structures and the use of fertility treatments, particularly the use of frozen donor eggs.

It has been immeasurably helpful to have received increased support from non-profit surrogacy organisations who have become remarkably effective in raising awareness amongst women wanting to become surrogates. The intended parents who have chosen or who are considering entering surrogacy arrangements overseas, because of perceived ease, certainty, or a misplaced understanding that this would make them legal parents might want to carefully reflect on the options now increasingly available within the UK.

There is also increased understanding that surrogacy isn't a 'risky business', in which intended parents face the risk of a surrogate changing her mind and keeping the baby. It is known that surrogates also worry that the intended parents will change their minds and leave them with a baby they never intended to have. Research and experience have confirmed such events to be incredibly rare. More accurate understanding about surrogacy appears to have become embedded into public, legal, and clinical understanding and into clinical practice. Evidently, this is leading to more intended parents choosing to pursue surrogacy on home soil.

It is well recognised that the law on surrogacy is increasingly out of step with the modern realities of the practice. The current law, based on the 1985 Surrogacy Arrangements Act, came into existence at a time when surrogacy was viewed with considerable suspicion. The Human Fertilisation and Embryology Act 2008 somewhat modernised the pathway for obtaining parental orders by encompassing same-gender and non-married couples, instead of only allowing heterosexual married couples to apply, as was previously the case. But only as recently as 2019, the law had to be changed following a declaration of its incompatibility with human rights obligations, to allow solo parents with a genetic link to a child born to a surrogate to obtain a parental order. However, many of the remaining parental order criteria are out of date, most having been challenged or circumvented by the courts in the best interests of the children who have been born via surrogacy. Further reform is very much needed.

Clinical experience from the London Women's Clinic on over 150 surrogacy treatments (recently submitted for presentation) supports the findings and conclusions shown in the report. We have seen that the number of surrogacy treatments taking place in our clinics has steadily risen year on year, as has the proportion of surrogacies being undertaken by same-gender couples. We know that surrogacy is a legitimate and fundamental part of what can be safely offered to intended parents who come to it following failed attempts at other uterine factor fertility treatments, extreme recurrent miscarriage, certain fertility-destroying cancer treatment or because they have always known that for medical reasons, or because the intended parent(s) are male, surrogacy is the only way they could have a child.

We welcome the fact that this new report accepts the new realities, and we look forward to the Law Commissions bringing forth progressive proposals in their report due next year. We also welcome the positive tone of the news reporting, which hopefully will help to inform the public and political debates that will inevitably follow the Law Commissions' report and lead to new, world-leading law on surrogacy. Those who need to use surrogacy to have children should be able to do so in the security that they can be fully supported not only clinically, but legally too.