The number of parental orders issued by the family courts has increased by almost 400 per cent in a decade, according to a recently published report
Parental orders are issued by the family courts in order to transfer the status of parenthood from the surrogate mother of a child to the intended parents or parent. In 2011, 117 such orders were issued in England and Wales – but by last year 2020 that had risen to no less than 413.
Under current legislation in England and Wales, a surrogate mother retains the legal status of parent after birth, even if the child has no genetic relationship to her, until the status is transferred.
Surrogacy arrangements are typically made by same sex couples who wish to have children, or opposite sex couples with medical or fertility issues, often age-related. The latter group now makes up majority of those seeking surrogacy arrangements, the report explains. The report was issued by the non-profit organisation My Surrogacy Journey, along with the University of Kent.
In some countries, surrogacy is a commercial, for-profit undertaking but this approach remains illegal in the UK. The ‘commissioning’ parents can only cover the surrogate’s expenses during the pregnancy, which can be substantial. It is even illegal to advertise for a surrogate mother, so childless couples can struggle to find anyone willing to be a surrogate.
The Law Commission is an independent statutory organisation which reviews legislation and makes recommendations for reform. It is currently reviewing English surrogacy law, which dates back to 1985. The Commissioner for Family Law has already concluded that the law should be updated. Professor Nick Hopkins explained:
“We’re looking at the idea that legal parentage would start not with a parental order but at birth. But it is fundamental to our review that the surrogate must retain her bodily autonomy throughout and a surrogacy agreement would not be enforceable if a surrogate withdrew her consent – which is extremely rare.”
A report outlining the Commission’s recommendations is expected in 2022.