You can't Botox your ovaries

Louisa Ghevaert, Head of Michelmores' Fertility and Parenting Team was delighted to join the debate in The Economist this week on surrogacy. You can read more here.

Demand for surrogacy is increasing around the world.  In England and Wales, 400 children were granted parental orders in the English Family Court in 2016, an eight-fold increase since 2007.

Demand for surrogacy is increasing for a variety of reasons. Advances in medical technology, changes in law and social attitudes towards family life mean increasing numbers of people are turning to surrogacy.

The average age of a woman having a baby in the UK has increased from 21 in 1971 to 30 years today.  Men having babies are getting older too.  Women are born with a fixed number of eggs.  Egg numbers and quality diminish with age.  Put simply, you cannot Botox your ovaries. 

More than 1,000 women lose their wombs to cancer each year in the UK. There are more than 50,000 women of child bearing age in the UK who do not have a womb.  Increasing numbers of women are turning to surrogacy when they cannot conceive as a result of illness, injury, repeat miscarriage and unexplained infertility. These factors drive interest in surrogacy.

It is taking longer in the UK to find a partner, get married or make the decision to become a solo parent.  The average age at marriage in the UK was 37 for men and 34 for women in 2013, compared with averages ages for men of 29 and 25 for women in 1971.

Many are delaying parenthood for financial reasons.  In the UK, it is taking longer to achieve a living wage, establish a career and get on the housing ladder, which many perceive to be important steps before having a family. The cost of a first time home on average across England and Wales has increased by almost 20% over the last 10 years. In England the average home in 2016 cost £198,000. This figure rose to a staggering £423,000 in London in 2016 for first-time buyers.  Average rents in Britain cost £921 a month.  The cost of housing is a serious challenge for many when job security is not a given and salaries struggle to keep up with the cost of living.  Full time childcare costs in the UK cost on average a whopping £12,000 a year or more.

Whilst surrogacy is legal (but restricted) in the UK, some European jurisdictions ban surrogacy.  In other jurisdictions surrogacy has until recently been unregulated.  This created a global surrogacy sector.  Developing countries became attractive options with low costs, lack of regulation and plentiful supplies of surrogates and donors. Since 2015, some jurisdictions have taken action to ban commercial surrogacy for foreign intended parents following concerns about exploitation including Thailand, Nepal, India and Cambodia.  However, these changes have driven surrogacy to places like Laos and Greece.

There is no international harmonisation of surrogacy law.  This creates conflicts of law when intended parents cross borders for fertility treatment and surrogacy.  This can leave intended parents and surrogate born children without legal status and recognition.  It can take months to obtain travel papers so surrogate born children can return home with their intended parents.  Court processes to secure legal status in home countries can take months and can create long running legal battles in some jurisdictions.

The Council on General Affairs and Policy of the Hague Conference has convened an Experts' Group to explore the feasibility of international recognition of surrogacy.  However, it is proving difficult to reach consensus about surrogacy at an international level. Work is ongoing.  More needs to be done to recognise the reality that demand for surrogacy around the world is growing.  Legal restrictions create legal uncertainty and they do not resolve the issue.

If you would like to discuss your situation in more detail or find out more about UK fertility, family  and parenting law contact Louisa Ghevaert by email: Louisa.ghevaert@michelmores.com or by telephone +44 (0)207 7886382.