In the last decade, parents in England and Wales have increasingly chosen surrogacy as a way to grow their families, with the numbers of children born through surrogacy more than quadrupling. However, despite a significant increase in popularity and interest, demand for surrogates in the United Kingdom significantly outstrips the number of available surrogates, raising questions about the reasons behind the shortage and what the future might hold for surrogacy in the UK.
Although there has been a significant rise in UK surrogacies in the past few years, there are still many more intended parents looking for a match in the UK than there are surrogates. NGA Law and Brilliant Beginnings are constantly reminded of this shortage, with more than two thirds of the parents we support feeling they have no choice but to go abroad for surrogacy. Every day, we hear that finding a surrogate in the UK just doesn’t feel feasible, despite all best efforts, and that UK law does not support or enable surrogacy as it should.
The impact of the UK surrogate shortage is being felt nationally, with all the UK surrogacy organisations either closing their books, operating with ratios in which the numbers of intended parents vastly outnumber the numbers of surrogates, or having incredibly long or unquantifiable waiting times.
Data from the Family Court also shows how parental order applications for overseas surrogacy arrangements have dramatically increased over the past 15 years, with births through international surrogacy now constituting 56% of all applications made, putting UK surrogacy in the minority. And this does not even reflect those parents who have forgone their family building plans because they have not been able to find a UK surrogate.
So, why is there a shortage of UK surrogates?
It is of course a wonderful, selfless and brave act for someone to offer to become a surrogate to help grow someone else’s family – giving heritage to families who otherwise could not conceive as well as being life affirming for surrogates and their own families. UK surrogates are determined to help, even if the law isn’t perfect. Their lives have typically been enriched and the fact that many go on to do sibling journeys or to be rematched gives insight into the positive experience they have had. We are seeing more women coming forward, even if not enough.
However, we worry that potential surrogates and their wider family may decide not to proceed once they understand the current UK legal framework. The current law can make UK surrogacy seem an uncertain and unpredictable process, with no one’s intentions properly recognised and too little understanding and acknowledgement of the considerable time and effort surrogates and their families put in.
The current law in the UK
Currently, the legal framework in the UK confers legal responsibility and parenthood status for the child on surrogates (and their spouses, if they have one), from birth until a parental order is granted, which only happens many months after the birth. This is due to a legal framework drafted in the 1980s which says that the woman who gives birth is the legal mother, and if married, her husband is the legal father. The law was designed to protect parents through egg and sperm donation, not surrogacy. However, it means that surrogates are left in limbo for a period of time after the birth, and may feel vulnerable that the intended parents could change their minds. Although changes of heart (on both sides) are almost unheard of in practice, the lack of legal certainty in UK surrogacy – and the fact that surrogacy agreements are based solely on trust – is a worry for everyone involved.
UK surrogacy law is murky in other ways too. Many surrogates do not realise that what can be paid in expenses has always been interpreted flexibly and in vague terms, and that in reality surrogates can (and do) receive some acknowledgement for the enormous commitment they and their families make. Compensation is not illegal in the UK and no parental order has even been refused because of payments made, but myths persist that it is illegal to pay anything other than reasonable expenses.
Why are so many people going to the US for surrogacy?
It is not a surprise that so many intended parents are turning to surrogacy abroad.
The first option for most is the US, which sets the gold standard for surrogacy internationally, with well-trodden ethical regulated paths, where both the surrogate and the parents are legally protected throughout the surrogacy process, there are enough surrogates so that wait times are short and predictable, and fair compensation is paid openly and transparently. It is no wonder it is such a popular surrogacy destination.
In comparison to the UK, surrogacy in the US has safeguards built into the system to ensure all parties are properly protected, and agreements are based on a fair balance, with transparency and legal certainty throughout. Due to how safely managed surrogacy is in the US, surrogates are protected and acknowledged, and there is no real shortage of women wishing to help those who cannot create families on their own.
Do we see a change in the horizon for the UK? Sadly, not any time soon.
Surrogacy is slowly becoming more understood, but for surrogates in the UK to feel protected there needs to be a change of legislation. We would like to see a process which protects everyone involved, and recognises the right people as the legal parents from the start, as well as allowing surrogates to be fairly compensated more transparently.
The Law Commissions of England and Wales and Scotland published their final recommendations in 2023 for UK surrogacy law reform, see here for their proposals. Unfortunately, although there are some positive suggestions, the recommendations do not go as far as they should to truly make a difference to a 40-year-old law, which currently faces a very different cultural, social and scientific landscape.
There is also absolutely no current timescale of when – or even whether – the government might take the proposed changes forward. They might never happen, so anyone thinking of being a surrogate or having a family through surrogacy should not put their plans on hold just because they think law reform is around the corner.
Therefore, we do not see the shortage of UK surrogates changing in the near future in the UK, although we hope that nonetheless more amazing women will continue to tenaciously defy the flawed legal landscape. Those who do can access support from organisations like NGA Law and Brilliant Beginnings which continue to make UK surrogacy less unpredictable and safer. We have passionately campaigned for UK surrogacy law reform since 2007, and believe the way to improve UK surrogacy law is to ensure parents are recognised as legal parents at birth, and there is a proper process for compensated surrogacy in the UK so surrogates can be fairly acknowledged and fewer parents need to look overseas.
Experience has taught us that surrogates do not change their minds, and that children thrive if they are loved, regardless of the number or gender of their parents. Would-be surrogates need to feel protected from a legal perspective, just as much as intended parents. The law should acknowledge the commitment surrogates and their families make, so that more surrogacy arrangements can happen in the UK.
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