Sir James Munby, the former President of the Family Division recently declared the concept of family and the parent-child relationship as being "very much back in the melting pot for change". Developments in science and, more importantly, society's greater acceptance of non-traditional forms of family have seen significant changes in family life and what we consider to be a family.
Women are no longer expected to sacrifice their careers to have a child (although the adverse financial consequences of the "motherhood penalty" still exist). Age is no longer the prohibiting factor to having children that it once was. Many can rely on advances in technology to build their families through IVF and surrogacy. Some global corporations have gone as far as to provide their employees with free IVF treatment. But despite this progress, the law has failed to keep pace with the changes in this area.
In this jurisdiction, surrogacy arrangements are governed by the Surrogacy Arrangements Act 1985 and the Human Fertilisation and Embryology Act 2008 ("HFEA"). Although these provided a legal mechanism for ratifying surrogacy arrangements, such arrangements are unenforceable and commercial surrogacy remains unlawful. Society has moved on since 1985, when the idea of surrogacy itself was controversial, and the amendments made in 2008 did not go far enough. Cases dealing with the law under HFEA have demonstrated that the current legal framework is outdated and unfit for the realities of modern families. There is a pressing need for legal reform, often only illustrated when things go wrong.
In this jurisdiction, it is necessary to obtain a parental order to transfer legal responsibility for a child from the surrogate mother to the intended parents. Yet it is believed that there are many children born from a surrogacy arrangement whose intended parents do not obtain a parental order. Given the increase of surrogacies with an international element, this has created a ticking legal time bomb, whereby an overseas jurisdiction may have already transferred legal responsibility to the intended parents, unwittingly leaving a child both stateless and, legally, parentless.
Many of the potential pitfalls arise due to a lack of public awareness and education regarding the topic. However, there are also difficulties caused by the current state of the law. It was only in January 2019 that HFEA was amended to permit a parental order to be made in favour of a single person. Before that, the Courts had to adopt an increasingly imaginative approach to situations where e.g. intended parents separated part way through the surrogacy process. The Courts continue to take an open-minded approach to the vexing issues that arise around surrogacy arrangements and strive to achieve an outcome that is in the best interests of the child. However, until the legislation catches up, there remains a risk to a child's very identity by the shortcomings in the current legal framework.
Many overseas legal systems are significantly more advanced than ours in this area. They have a framework which reflects the changes that have occurred in society and recognise and accept surrogacy arrangements. Importantly, they provide appropriate guidelines to protect those involved in the arrangement. The reform of the outdated HFEA, announced in December 2017 and commenced in spring 2018 is to be welcomed. However, that reform needs to take place as a priority, in order to ensure that children born of surrogacy arrangements are not left in an intolerable position.