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Surrogacy and Egg Freezing

What you need to know before you embark on your surrogacy or egg freezing journey.

By Andrew Powell, family law barrister at 4PB.

The concept of parenthood in English law, and therefore the routes couples can take to become parents, is a dynamic and ever-changing one. We know that as family structures have changed, and medical advancements have paved the way for assisted reproduction and surrogacy, English law has adapted to redefine the ever-widening parameters of parenthood. When navigating the complexities of surrogacy and egg freezing, having the right support system is crucial, including finding the best llc service to ensure your ventures in fertility and family planning are professionally managed and legally secure.

Each year, the 25th July marks the anniversary of the birth of the first ‘test-tube baby’. Louise Brown was born in 1978 at Oldham General Hospital and was the first person born following conception by in vitro fertilisation (IVF). Her birth unlocked the door for many would-be parents. As technology and medicine advance, doors continue to be unlocked. Surrogacy and egg-freezing have enabled individuals the opportunity to become parents, when they might otherwise have not.  

Is Surrogacy Legal in the UK?

For surrogacy, this sometimes seems like a relatively new route to parenthood that is often featured on the front pages of glossy magazines with a celebrity or as a story line in a soap opera. In reality, surrogacy has been around for much longer. The biblical story of Abraham and Sarah, unable to have a child and seeking the assistance of Hagar is often cited as the first story of surrogacy.  Whether that is the case or not, in the UK there was no law around the issue of surrogacy until the mid-1980s when commercial surrogacy was prohibited in the UK. Altruistic surrogacy, is, and always has been, lawful in the UK.

So, what are the need-to-know facts a couple (or individual!) should be aware of when considering surrogacy?

There are generally two types of surrogacy:

  1. Traditional surrogacy where the egg of the woman carrying the child is used to create the embryo and gestational surrogacy;
  2. Where an embryo is created (using a donor egg or the egg of an intended mother, together with the sperm of the intended father or donor sperm) and transferred to the uterus of the surrogate.

Whilst there have been significant advances in medicine and technology, English law always recognises the woman who gave birth to a child as the child’s legal mother; and if she is married, her husband is regarded as the legal father.  

In order for intended parents to be recognised, they must apply to a court in the UK for a legal order called a parental order. This is similar to an adoption order, in that the legal parenthood of a child is transferred from the surrogate exclusively to the intended parents.  However, in order for legal parenthood to be granted, it’s important to know that at least one of the intended parents must be biologically related to the child and live in the UK. The surrogate (and husband if married) must also consent to the order being made – and it’s this step which can make international surrogacy risky, which I’ll touch on shortly.

For parents in the UK looking to use surrogacy, the first question many will ask is whether they wish to embark on a domestic surrogacy journey or an international one. 

In the UK, intended parents may approach a not-for-profit organisation who can match intended parents with would-be surrogates. A common route for many families can be a family member such as a sister, offering to be a surrogate – this can bring much more certainly for intended parents, knowing that their baby-to-be is in safe and trusted hands.

Surrogacy does not come without risks and one of the main problems often identified by intended parents embarking on surrogacy in the UK is that the matching period can often be quite long, with there being fewer surrogates available. Due to difficulties in accessing a surrogate, some individuals may elect to use more informal routes, such a social media websites, which can present difficulties later on.

Another challenge that is often cited is in relation to there being a legal uncertainty over recognition as parents - intended parents are not legally recognised as parents until they get a parental order, which can take anywhere from 6-12 months from when an application is issued, while many understandably want the security of legal certainty much sooner, ideally from birth.

When it comes to intended parents travelling internationally for surrogacy, it’s vital that they should still apply for a parental order in order to be recognised as the child’s legal parents. Whilst there’s no obligation to apply for such an order, there may be significant consequences for the child later down the line, ranging from being able to consent to medical treatment, to succession and inheritance rights. In short, failing to apply for a parental order can lead to a “ticking legal time bomb” according to one High Court judge!

It's also vital to be aware of the risks that come with looking for a surrogate parent abroad. Many couples who struggle to find a surrogate in the UK will look abroad, often via social media. The lack of protections that come with this can be emotionally and damaging for couples in some scenarios – while some intended parents may face immigration issues in bringing their child back to the UK, some may face surrogates demanding additional financial support in order for the baby to be handed over. In the worst cases, parents have faced the terrible situation of surrogates aboard disappearing with their child without a trace.

With more couples choosing surrogacy as an option to have children, it’s so important to make yourself aware of the benefits and risks that come with each avenue.

Egg Freezing

Much like surrogacy, people freezing eggs has increased exponentially in the last decade – over tenfold in the last decade from around 230 cycles in 2009 compared to nearly 2400 cycles in 2019.  

The option of egg freezing has given greater choice for women on when in their life they’d like to become mothers. Not only this, egg freezing also allows for women undergoing medical treatment or experiencing health issues that might have prevented them from naturally conceiving healthy children, to become mothers. This could include women receiving cancer treatment, where there is a history of premature menopause or for people undergoing gender reassignment. Increased accessibility to egg-freezing services gives so many more women, for whom the prospect of having children originally seemed distant, the chance to have their own family.

One significant and recent change in accessibility to surrogacy and egg freezing was allowing single people the right to apply for a parent order since 2019, providing they are biologically related to the child.  This means women who, for example, are able to produce eggs but unable to carry a baby to term, can apply for a parental order if they had a child using their egg and a surrogate on their own. Similarly, single men can also apply - providing they are biologically related to the child.

There have been fantastic developments in the last few years that have allowed more people to become parents. But these don’t come without risk and can be quite complex in respect of who is and who isn’t a parent. Legal advice before embarking on any particular procedure is always advised, particularly where there is an international element and a child might be born abroad!

Andrew Powell is a family law barrister at 4PB