Understanding Surrogacy Laws for the LGBTQ+ Community
Surrogacy laws in England and Wales are often seen as outdated and complex. Critics have long argued that they fail to keep pace with modern views on family and parenthood, presenting particular challenges for LGBTQ+ individuals and couples looking to start a family.
It was only in 2019 that single individuals gained the right to apply for a parental order—the mechanism through which legal parenthood is transferred from the surrogate to the intended parent. Before this change, only couples could apply, which added another layer of difficulty for those not in a partnership.
With recent recommendations from the Law Commission, there is optimism that the surrogacy process may soon become more inclusive and straightforward. This article outlines some of the proposed legal reforms and offers essential insights into understanding your rights and options as an LGBTQ+ individual considering surrogacy.
Current Surrogacy Laws and Their Impact on LGBTQ+ Couples
The surrogacy laws governing England and Wales, primarily enacted in the 1980s and updated in the late 2000s, do not fully address the needs of today’s diverse families, especially LGBTQ+ people.
Under the current legal framework, same-sex couples or individuals may face situations where they are not recognised as the legal parent of their child at birth, leading to potential legal ambiguities and emotional stress. Consulting with specialised legal professionals can help clarify how the law applies to your circumstances and ensure that everyone involved in the surrogacy arrangement is fully informed and has given their consent.
Proposed Changes to Surrogacy Laws
In its 2023 report, the Law Commission put forward several significant changes aimed at modernising surrogacy laws to better accommodate contemporary family structures, including those of LGBTQ+ couples. Key proposals include:
A New Pathway to Legal Parenthood: Under the draft proposals, intended parents would be recognised as the legal parents of the child from birth, provided the surrogate does not withdraw their consent within a designated period. This new pathway would eliminate the need for a court application for a ‘parental order’ and would be overseen by a Regulated Surrogacy Organisation.
Screening and Safeguarding: The proposed changes include comprehensive screening and safeguarding processes to be completed before conception. These measures are designed to ensure that all parties are fully prepared and that the child’s welfare is prioritised, ultimately simplifying the surrogacy process and reducing potential conflicts.
Genetic Link Requirement: The recommendations maintain the requirement for a genetic link between the child and at least one of the intended parents. Consequently, ‘double donation’—where both donor sperm and a donor egg are used—would still necessitate adoption to establish legal parenthood.
While these proposed changes may not resolve every issue, they represent a positive step towards making surrogacy more accessible, particularly for LGBTQ+ people. Surrogacy and IVF Law Specialist Claire Higham at Slater Heelis commented:
“The Law Commission’s proposals would go a good way towards helping rectify some of the problems inherent in current surrogacy law. Whilst the recommendations do not go as far as many would have wanted, they will at least mean positive progress – subject, of course, to being implemented. This being said it is unlikely that the proposals will change the ongoing preference of many individuals who seek surrogacy arrangements overseas.” - Claire Higham Associate Solicitor in Family Law at Slater Heelis
The full report from the Law Commission, along with a summary and the relevant draft legislation, can be accessed here: Law Commission Surrogacy Report.
Understanding Your Rights as an LGBTQ+ Individual
Navigating surrogacy as an LGBTQ+ person involves understanding your rights and the legal protections available to you. Key points to consider include:
Protection Against Discrimination: The Equality Act 2010 provides protection from discrimination based on sexual orientation and gender identity. This ensures that LGBTQ+ individuals and couples are treated fairly throughout the surrogacy process and that LGBT parents receive equal treatment after the process is complete.
Parental Orders: For intended parents, it is crucial to understand the legal requirements for obtaining a parental order. This order legally recognises you as the child’s parent and permanently removes the surrogate’s legal ties to the child. Seeking independent legal advice is essential in navigating this process.
Adoption: In cases involving ‘double donation’ (where both the sperm and egg are from donors), a parental order cannot be applied for, and adoption becomes the primary route to legal parenthood. Again, independent legal advice is crucial to understanding the adoption process, including the necessary home visits, assessments, and legal procedures.
Practical Steps for LGBTQ+ People Considering Surrogacy
Seek Legal Advice Early: Engaging with a legal expert at the outset of your surrogacy journey is key to understanding your rights and obligations. Specialists in LGBTQ+ family law can offer tailored advice and support.
Choose Reputable Surrogacy Agencies: Partnering with a reputable surrogacy agency can provide additional guidance and support. These agencies typically offer matching services, counselling, and legal assistance, making the process smoother.
Prepare for Parental Order Applications: Ensure that all required documents for the parental order application are prepared, including proof of the genetic link, consent forms from the surrogate, and any other relevant paperwork.
Stay Informed About Legal Changes: Keeping up to date with potential changes to surrogacy laws that could impact your situation is essential. Engaging with advocacy groups and legal experts will help you stay informed and ready for any legal developments.
If you’ve recently separated from your partner but still want to pursue parenthood, or if you have separated from your partner during the surrogacy process, it’s important you seek independent legal advice to understand your
Support and Resources
Starting a family through surrogacy can be a deeply emotional experience, but there are many organisations and charities ready to support LGBTQ+ couples:
LGBT Foundation: Provides advice and support on a wide range of issues affecting LGBTQ+ individuals, including family planning and surrogacy.
Stonewall: Offers resources and advocacy for LGBTQ+ rights, including information on parenting and surrogacy.
Surrogacy UK: A community-driven organisation offering support, information, and guidance on surrogacy within the UK.
Getting Support
If you require compassionate and expert legal support, contact our partner law firm, Slater Heelis, via their website or on 0330 111 3131.
