Law Commission suggests legislation is not keeping pace with social change.

What do Friends, How I Met Your Mother, Rules of Engagement and The King of Queens have in common? Apart from being excellent US comedies (though let’s not talk about the How I Met Your Mother finale), they all have central characters who deal with fertility issues.

Given the emotional toll fertility issues can have on a couple, I’m always (pleasantly) surprised that US comedy scriptwriters are not afraid to tackle such an important subject.

It’s also why my eyes immediately veered towards the word ‘surrogacy’ in the Law Commission’s varied list of potential projects that could form part of its 13th programme of work.

Identifying surrogacy as an area of law where reform may be required, the commission asks if the law governing surrogacy is keeping pace with social change.

Speaking to fertility lawyer Natalie Gamble, of Hampshire firm Natalie Gamble Associates, the answer appears to be an emphatic ‘no’.

‘The world has changed significantly,’ Gamble says. ‘People all around the world are crossing borders to find a surrogate.’

Gamble’s firm has been pushing for surrogacy law reforms for several years.

The Human Fertilisation and Embryology Act 1990, which was updated in 2008, makes the woman who gives birth (the surrogate) and her spouse (the surrogate’s husband/wife), the legal parents of a child. The intended parents can apply for a parental order after their child is born to make them the legal parents if they meet certain criteria.

My eyes immediately veered towards the word surrogacy in the Law Commission’s varied list of potential projects

According to a parliamentary briefing paper produced by Natalie Gamble Associates and non-profit UK surrogacy agency Brilliant Beginnings, the process takes between six to nine months.

‘The mechanism was tacked on to the law as a last-minute amendment at a time when surrogacy was rare. There was virtually no parliamentary debate on the detail,’ the paper states.

The parental order process for reassigning parentage after the birth is problematic, with restrictive and outdated criteria which are assessed in hindsight, it adds.

‘The law is simply unfit to deal with the modern realities of diverse surrogacy experience, and as a result the courts have stretched the rules to make orders crucial to safeguard children’s welfare. This has made the current law unclear and artificial.’

Gamble is not surprised that surrogacy has made it to the commission’s shortlist of potential projects, citing Re Z (A Child) (No 2) [2016] EWHC 1191.

There is no power for the court to make a parental order in favour of a single person (as opposed to a couple), which led Sir James Munby, president of the Family Division, to make a formal declaration of incompatibility with the Human Rights Act earlier this year.

Gamble says there have been 20 declarations of incompatibility made in UK law; 19 resulted in a change to legislation.

‘They’re really significant decisions,’ she says. ‘Parliament cannot really effectively ignore that ruling.’

Figures suggest surrogacy is on the rise. Gamble says 295 parental orders were made last year, compared to around 50 five or six years ago.

But the figures do not tell the whole story, she adds. ‘A lot of people will go overseas for surrogacy and never apply [for a parental order]. It’s difficult to know how many people are not going through the proper legal processes.’

The commission’s consultation on its next programme of work closes on 31 October. 

Monidipa Fouzder is a Gazette reporter