Natalie speaks to the UK Family Law Bar Association national conference about surrogacy and modern families

October 30, 2016
Natalie was invited to the FLBA national conference last weekend, as one of a number of speakers including the President of the Family Division and Lord Justice McFarlane from the Court of Appeal, to address family law barristers from across the UK. Natalie talked about surrogacy and modern families and asked whether UK law is keeping up.  The topic was well timed, given that the Law Commission is currently consulting on whether to review the law on surrogacy and birth certificates.

Natalie talked about how progressive UK law is for families created through assisted reproduction compared with many of our European neighbours, but how there are areas where it is not working. The law’s definition of parenthood for children conceived through assisted reproduction is based a narrow one size fits all approach (based on the circumstances of conception rather than the child’s reality). Natalie talked about the situations where the family court has had to stretch and bend the law to safeguard children and to recognise families created in increasingly diverse situations.

Particular problems have arisen for parents through sperm donation where clinic forms creating parenthood haven’t been dealt with properly, and for LGBT families where the law only recognises 2 of the 3 or 4 parents raising the child as legal parents. But it is on surrogacy that we see the biggest failings.

As Natalie explained to the conference, UK surrogacy law was written in the 1980s and its main aim was to stop surrogacy from developing. Far from withering on the vine, however, surrogacy has blossomed, both via informal UK arrangements and by UK parents crossing borders to enter into international surrogacy arrangements.  The Family Court has had to deal with the consequences, stretching the law to safeguard children’s basic right to have legal parents and to cope with diverse modern surrogacy. For example, the court now makes parental orders routinely in cases where parents have paid more than reasonable expenses and it allows late applications even though the law says that parents ‘must’ apply within six months of the birth. This has enabled the law to evolve but it means that what the law says and what it does are now very different things. And the court has not been able to stretch the law to protect all children. In a ruling this year, the President of the Family Division declared that the law was breaching the human rights of children born to single parents because their parents were not eligible to apply for a parental order.

A review of the law is much needed and long overdue. There is now plenty of evidence that surrogacy can be managed positively for all involved, that disputes are very rare and that the law needs to better protect children’s basic human right to a secure legal identity from birth. At a time when our family court system is under considerable strain, why are judges of the Family Division spending so much time dealing with legally complex surrogacy cases even though there is no dispute nor any doubt about what is in the child’s best interests in the overwhelming majority of cases?

What we need is a legal mechanism for dealing with surrogacy upfront, so that the family court can make an order determining parentage much more straightforwardly, based on a pre conception process evidencing intention (and in international cases what is reflected in the law where the child will be born). Children can then be born with a secure identity which reflects their reality.  We need to see no more children stranded overseas stateless and parentless, no more children stuck in legal limbo for up to a year after their birth, and a safer and more reliable legal process for those entering into surrogacy arrangements in the UK.

Natalie urged family law barristers to get involved by sharing their experience of the law’s current deficiencies with the Law Commission and recommending that the law is brought up to date. She also reflected on whether surrogacy reform might be a first step toward UK law adopting a broader definition of parenthood based on the intention of those conceiving a child (rather than the circumstances of conception) which would cater better for all modern families.

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