By Ken Glass
SURROGACY was almost unheard of in the past but is now much more common. Indeed, celebrities such as Priyanka Chopra, Kim Kardashian and Sarah Jessica Parker have all announced additions to their family through surrogacy.
Scientific data reveals an alarming drop in male fertility with sperm count in key Western world countries declining by between 50-60 per cent. Female fertility has also dropped, albeit not to the same extent. In a broader context, this decline is impacting the Total Fertility Rate (TFR). A TFR of two means that the population of Earth continues to replace itself, neither growing nor depleting. But if TFR dips below two, the population declines. In the 1870s TFR was said to be around six; it now measures 2.1.
As fertility declines, and unless medical advances reverse this, we are likely to see an increase in the use of surrogacy and other means of assisted conception in years to come.
The law regarding surrogacy has been around for some time, is subject to significant criticism and in my view is no longer fit for purpose. It says that the surrogate mother is the legal parent of a child born in this way, even if the surrogate has no biological relationship to the child, that is, in circumstances where the intended parents have provided both the egg and the sperm to fertilise the egg.
Currently, intended parents may only apply for a Parental Order within a specific timeframe of six weeks to six months after the birth of the child. This bizarre legal process is understandably unsettling for intended parents at what should be the happiest of times.
But there may be good news on that front. The respective Law Commissions north and south of the Border have agreed the law requires review, and we are awaiting a bill to deal with surrogacy moving forward.
Means are being considered to create a new pathway which will allow intended parents to be the legal parents of the child from the moment of birth. Mandatory counselling and independent legal advice may also be included to minimise the risk of surrogacy arrangements breaking down.
Attention is also turning to recognise international surrogacy arrangements and relaxing the somewhat mandatory and arbitrary timeframe. A Parental Order at birth appears to be on the cards along with limitation on the surrogate’s opportunity to challenge a Parental Order. I would welcome detailed guidance regarding nationality and immigration which would smooth the path for intended parents returning to their home country with a surrogate child.
Also on my wish list is guidance in relation to the surrogacy arrangement as a whole and the thorny issue of payment of expenses to a surrogate.
For these reasons, the draft bill is hotly awaited with proposals expected in the autumn. The thrust of the proposed changes is to streamline the process and create certainty, particularly at the point of birth.
Surrogacy has moved on. The law needs to keep pace to meet current expectations for everyone involved.
Ken Glass is a Legal Director of Gilson Gray
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