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Archers storyline reflects need for surrogacy law reform

Date:20 FEB 2020
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A BBC soap opera storyline is highlighting how current surrogacy legislation is at odds with modern reproductive practices, says Southampton specialist parenting lawyer Sarah Wood-Heath. 

Archers couple Ian and Adam are applying to the court for a Parental Order to obtain legal parentage of baby ‘Xander who was born to a surrogate. 

However, warns Sarah, partner with national law firm Clarke Willmott LLP, until that time the pair remain vulnerable to the surrogacy agreement breaking down with the surrogate. 

“Providing the relationship is built with the surrogate and everyone is comfortable with one another surrogacy provides a wonderful way to build and grow a family,” said Sarah. 

“However, at the moment, all surrogacy arrangements in the UK are informal and are based on trust and each side is in a vulnerable position as the Archers storyline correctly reflects. 

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“The legal uncertainty can take a huge toll on all parties involved. 

“The concern that either side might back out - that the surrogate will not hand over the baby or the intended parents renege on the deal – are very real.  

“Many intended parents and surrogates do prepare a written agreement which can be helpful to identify concerns and prepare for situations which may arise during the pregnancy. 

“However, this document is not enforceable should difficulties arise.” 

Sarah says until a Court Order is obtained, intended parents may have no rights when it comes to the ability to make day to day decisions in respect of the welfare of the child, such as consent to medical treatment, education, religion. 

The Law Commission recently conducted a consultation on the matter and expects to produce a final report with recommendations for reform of the law, and a draft Bill, in 2021. 

“According to the Commission, the number of children born by surrogacy in the UK is up to 10 times higher than it was a decade ago,” added Sarah.  

“There is a consensus that urgent reform is needed to make sure the law works for everyone involved to create a system that works for the surrogates, the parents and the child. 

“In the meantime, parties should make sure they get to know one another prior to entering into the arrangement, so that the relationship of trust can build up and to ensure they are emotionally ready for the journey ahead.” 

Once the baby is born, a solicitor can act for and represent the intended parents/surrogate in the application to the court for a Parental Order to obtain legal parentage for the intended parents and extinguish the status of the surrogate.  

An application for an Order must be made within six months of the date of the child’s birth, although a recent case  supports an extension of time in the event of extenuating circumstances.