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How the law has kept up with changes in surrogacy and IVF

PUBLISHED: 12:02 26 July 2019

Pornpak Khunatorn/Getty Images/iStockphoto

Pornpak Khunatorn/Getty Images/iStockphoto

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On 25 July 1978, Louise Brown, the world's first test-tube (IVF) baby was born. She celebrated her 40th birthday last year

IVF has subsequently opened the door for many couples with fertility problems to start their families. Surrogacy - which often includes the use of IVF - is another option for families where there may be infertility issues. It is increasingly in the news with many celebrity couples including Kim Kardashian and Kanye West and Robbie Williams and Ayda Field having surrogate babies just in the last year.

Traditional surrogacy is when the surrogate host is related to the child. Gestational surrogacy is when the host is not genetically related to the child and donor eggs are used - this has only been an available option since the 1980s with the introduction of IVF. Traditional surrogacy has been practiced for thousands of years: the bible refers to the story of Sarah and Abraham. Sarah was infertile and in her 90s and her handmaiden, Hagar, carried her husband, Abraham's, child.

It is reported that today there may be as many as six million surrogate children in the world but record keeping is patchy and many surrogates do not register their children or apply for orders and organise their surrogacy arrangements on an informal basis.

The law has struggled to keep up with the changes in modern families and the Law Commission has recently issued a public consultation paper with provisional proposals and is seeking input from interested parties to its consultation paper with a view to reforming and updating the law.

In England and Wales, surrogacy is currently governed by the Surrogacy Arrangements Act 1985 and certain provisions of the Human Fertilisation and Embryology Act 2008. Commercial surrogacy is illegal and it is a criminal offence to advertise either for a surrogate or to be a surrogate. In some countries such as India, Russia and the Ukraine commercial surrogacy is permitted. In the United States surrogacy is unregulated and each federal state has its own laws relating to surrogacy. At present only altruistic surrogacy is permitted in England and Wales and the Commission proposes that this should continue. It was only in 2010 that same sex couples were allowed to be surrogate parents and only in January this year that a single person was allowed to be a surrogate parent. One of the fundamental changes recommended by the Law Commission is that the intended parents be allowed to become legal parents of the child from birth with no application to court. At present it may be many months before the intended parents become the legal parents after an application for a parental responsibility order.

The consultation paper closes in September. It will be interesting to see what the Commission's recommendations will be. In the meantime, surrogacy continues to be both newsworthy and controversial and is likely to remain so for many years to come.

Kerry Fretwell is a family partner in the Reading office of Top 50 Law firm Penningtons Manches Cooper. She is rated as Band One and a leading individual in Chambers and Legal 500 directories of the best English lawyers. She advises and represents individuals through their divorce, finance and children proceedings and is also a qualified mediator. Kerry has a particular interest in the developing law around surrogacy. Contact on 0118 982 2658 and kerry.fretwell@penningtons.co.uk

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