In England and Wales, surrogacy laws remain complex. Critics have pointed out that they don’t reflect modern attitudes to family and parenthood, and the applicable rules involved often pose significant challenges for LGBTQ+ surrogacy and couples looking to start a family.
Regrettably, it took until 2019 for single applicants to be able to apply for a parental order (the current means by which legal parenthood is granted to the intended parent and removed from a surrogate) – prior to this, only couples could apply for a parental order.
With recent recommendations from the Law Commission, there is hope for a more inclusive and streamlined process to the law relating to surrogacy. This blog explores some of the proposed changes affecting LGBTQ+ individuals and provides essential information to help you understand your surrogacy rights and options.
Current Surrogacy Laws and Their Impact on LGBTQ+ Couples
Surrogacy laws that apply to England and Wales made chiefly in the 1980s and late 2000s, do not fully accommodate the needs of modern families, particularly LGBTQ+ couples.
The law as it stands can result in ambiguities and emotional stress for same-sex couples, as they may find themselves in situations where one or neither is the legal parent of their child at birth. Being advised by specialist lawyers on how the current law applies to your situation and ensuring all parties have given their informed consent in respect of the surrogacy process, can help set expectations and prevent any confusion or disappointment.
Proposed Changes to Surrogacy Laws
In its 2023 report, the Law Commission recommended significant changes to the current surrogacy laws to better reflect contemporary family structures and ease the path to parenthood for LGBTQ+ couples. The key proposals include:
- A New Pathway to Legal Parenthood: The draft laws would allow the intended parents to become the child’s legal parents from birth. This would ensure that legal parenthood is transferred immediately upon the child’s arrival, provided the surrogate does not withdraw consent during the relevant period. Unlike the current law (which requires a court application for a ‘parental order’), no court application would be required for this pathway, and the process would be overseen by a Regulated Surrogacy Organisation.
- Screening and Safeguarding: Rigorous screening and safeguarding assessments that would occur before conception, ensuring that all parties are prepared and the child’s welfare protected. This pre-emptive approach aims to streamline the surrogacy process and mitigate potential conflicts.
- Genetic Link Requirement: The report’s recommendations would still require a genetic link between the child and at least one of the intended parents. This means that ‘double donation’ (where both donor sperm and a donor egg would be used) would still necessitate adoption to establish legal parenthood.
While these proposed changes do not address every challenge, they do represent positive steps towards simplifying the surrogacy journey, including for LGBTQ+ couples. Surrogacy and IVF Law Specialist Claire Higham commented:
“The Law Commission’s proposals would go a good way towards helping rectify some of the problems inherent in current surrogacy law. Whilst the recommendations do not go as far as many would have wanted, they will at least mean positive progress – subject, of course, to being implemented. This being said it is unlikely that the proposals will change the ongoing preference of many individuals who seek surrogacy arrangements overseas.”
The Law Commission’s report (and a briefer summary version), along with the relevant draft legislation, can be read here: https://lawcom.gov.uk/project/surrogacy/.
Understanding Your Rights as an LGBTQ+ Individual
Navigating surrogacy as an LGBTQ+ person involves understanding your specific rights and protections. Here are some key considerations:
- Non-Discrimination Protections: The Equality Act 2010 provides protection against discrimination based on sexual orientation and gender identity. This ensures that LGBTQ+ individuals and couples are treated fairly in the surrogacy process and LGBT parents are treated fairly after the process.
- Parental Orders: If you are an intended parent, it is crucial to understand the requirements for obtaining a parental order – specialist, independent legal advice is a must. A parental order makes you the legal parent of the child and permanently removes the child’s legal ties to the surrogate.
- Adoption: For cases involving ‘double donation’ (i.e., where both donor sperm and a donor egg would be used), parental orders cannot be applied for, and so adoption remains the primary route to legal parenthood. Again, specialist, independent legal advice is key. It will also help you familiarise yourself with the adoption process, including home visits, assessments, and legal procedures, so you can be fully prepared.
Practical Steps for LGBTQ+ Couples Considering Surrogacy
- Seeking Legal Advice Early: Engaging with a legal expert early in the surrogacy journey is essential to helping you understand your rights and obligations. Legal professionals specialising in LGBTQ+ family law can provide tailored advice and support.
- Choosing Reputable Surrogacy Agencies: Working with reputable surrogacy agencies can provide additional support and guidance. These agencies often offer matching services, counselling, and legal assistance, making the process smoother.
- Preparing for Parental Order Applications: Ensure that all necessary documentation is in place for the parental order application. This includes proof of the genetic link, consent forms from the surrogate, and other relevant paperwork.
- Staying Informed About Law Changes: Keep up to date with potential changes to surrogacy laws that may affect your situation. Engaging with advocacy groups and legal experts can help you stay informed and prepared for any legal developments.
Support and Resources
Starting a family through surrogacy can be an emotional and complex journey, but numerous organisations and charities are positioned to support LGBTQ+ couples in their journeys:
- LGBT Foundation: Offers advice and support on various issues affecting LGBTQ+ individuals, including family planning and surrogacy.
- Stonewall: Provides resources and advocacy for LGBTQ+ rights, including information on parenting and surrogacy.
- Surrogacy UK: A community-led organisation offering support, information, and guidance on surrogacy in the UK.
How We Can Help
If you are an LGBTQ+ individual considering becoming a parent, understanding your legal rights and options is crucial. Our Family Team specialises in addressing the legal challenges faced by LGBTQ+ individuals.
We can provide expert guidance on applications for parental orders and adoption processes. For personalised advice and support, contact our team on 0330 111 3131, or fill out our online contact form, and one of our experts will get in touch with you.