Report on Building families through surrogacy: a new law Volume II: Full Report [2023] SLR 262_2 (March 2023)

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Law Commission


Law Commission of England and Wales

Law Commission No 411

Scottish Law Commission

Scottish Law Commission No 262

Building families through surrogacy: a new law

Volume II: Full Report (see also: Volume I: Core Report

Presented to Parliament and laid before the Scottish Parliament pursuant to section 3(2) of the Law Commissions Act 1965

Ordered by the House of Commons to be printed on 28 March 2023

HC 1237

SG/2023/77

© Crown copyright 2023

This publication is licensed under the terms of the Open Government Licence v3.0 except where otherwise stated. To view this licence, visit nationalarchives.gov.uk/doc/open-government-licence/version/3.

Where we have identified any third party copyright information you will need to obtain permission from the copyright holders concerned.

This publication is available at www.gov.uk/official-documents.

Any enquiries regarding this publication should be sent to us at Enquiries@lawcommission.gov.uk or info@scotlawcom.gov.uk

978-1-5286-3982-8

E02875841 03/23

Printed on paper containing 40% recycled fibre content minimum

Printed in the UK by the HH Associates Ltd. on behalf of the Controller of His Majesty's Stationery Office

The Law Commissions

The Law Commission and the Scottish Law Commission were set up by the Law Commissions Act 1965 for the purpose of promoting the reform of the law.

The Law Commissioners are:

The Right Honourable Lord Justice Green, Chair

Professor Sarah Green

Professor Nick Hopkins

Professor Penney Lewis

Nicholas Paines KC

The Chief Executives of the Law Commission are Stephanie Hack and Joanna Otterburn.

The Law Commission is located at 1st Floor, Tower, 52 Queen Anne's Gate, London SW1H 9AG.

The Scottish Law Commissioners are:

The Right Honourable Lady Paton, Chair

David Bartos

Professor Gillian Black

Kate Dowdalls KC

Professor Frankie McCarthy

The interim Chief Executive of the Scottish Law Commission is Charles Garland.

The Scottish Law Commission is located at 140 Causewayside, Edinburgh, EH9 1PR.

The terms of this report were agreed on 22 February 2023.

The text of this report is available on the Law Commissions’ websites at:

https://www.lawcom.gov.uk/project/surrogacy/

https://www.scotlawcom.gov.uk/law-reform/law-reform-projects/joint-projects/surrogacy/

Contents

Page

GLOSSARY

Abbreviations of legislation

List of common abbreviations

The current context of surrogacy

Governmental and parliamentary engagement in surrogacy

International developments

Access to surrogacy

The case for reform

Consultation

Consultation responses

Our Report

Our project

The impact of devolution and separate legal jurisdictions

Wales

Scotland

Northern Ireland

Terminology

Structure of this report

Acknowledgements

Current law, problems with it and our proposal for a new surrogacy

pathway

Current law

Problems with the current law

Proposal for a new surrogacy pathway

Overview of the new pathway

Overview

Eligibility requirements for both the new pathway and parental orders

Eligibility requirements and screening and safeguarding on the new

pathway

The role of RSOs

Payments that intended parents are permitted to make to the

surrogate

Relevant international law

The UNCRC and the Optional Protocol

The UN Special Rapporteur’s reports and the Verona Principles

The Hague Conference on Private International Law and The Hague

Convention on Parental Responsibility and Protection of Children

The Convention on the Elimination of All Forms of Discrimination

against Women (CEDAW)

The Hague Convention on Protection of Children and Co-operation in

Respect of Intercountry Adoption

Compatibility of our recommended new pathway with international law

The UNCRC

The Optional Protocol and the Special Rapporteur’s reports

The Convention on the Elimination of All Forms of Discrimination

against Women

The Hague Convention on Protection of Children and Co-operation in

Respect of Intercountry Adoption

The Verona Principles

Conclusion

Current law

The problems with the existing law

The impact of the current law

Intended parents gaining legal parental status at birth

The right to object

Limiting the circumstances in which the right to object can be

exercised

Starting point for the period in which the surrogate may object

Length of the period to object post-birth

Should the right to object be exercised in writing?

Who should be notified if the surrogate exercises her right to object?

Terminology

Effect of the surrogate’s withdrawal of consent

An alternative model: three-parent families

Legal parental status of the surrogate’s spouse or civil partner

Consultation

Analysis

Effect of stillbirth or death on the surrogacy agreement

Stillbirth of the child

Death of the child

Death of the surrogate

Death of the intended parents

Birth registration

How birth registration works in the new pathway

RESPONSIBILITIES AND PARENTAL RIGHTS

Parental responsibility/Parental responsibilities and parental rights of the intended parents on the new pathway

Consultation

Analysis

Parental responsibility/Parental responsibilities and parental rights of the surrogate on the new pathway

Consultation

Analysis

Restrictions on parental responsibility/Parental responsibilities and parental rights on the new pathway

Consultation

Analysis

Parental responsibility/Parental responsibilities and parental rights in the parental order process

Consultation

Analysis

Court to consider awarding parental responsibility at the first directions hearing: England and Wales

Consultation

Analysis

Interim orders for parental responsibilities and parental rights in Scotland in the parental order process

Consultation

Analysis

Parental responsibility/Parental responsibilities and parental rights: the interim period

Current law: England and Wales

Consultation

Analysis

Current law: Scotland

Parental responsibility/Parental responsibilities and parental rights: after the interim period

England and Wales

Scotland

Minimum age limit for the surrogate

Consultation

Analysis

Maximum age limits for surrogates

Requirement that the surrogate has previously given birth

Consultation

Analysis

Maximum number of surrogate pregnancies

Consultation

Analysis

Age limits for intended parents

Consultation

Analysis

Medical necessity as a requirement for surrogacy

Consultation

Analysis

Double donation

Current law

Consultation

Analysis

The relationship status of the applicants

Consultation

Analysis

Domicile or habitual residence

Consultation

Analysis

ORGANISATIONS

The surrogacy regulator

Applying the HFEA’s Code of Practice to RSOs

The role of HFEA-licensed fertility clinics on the new pathway

Regulated Surrogacy Organisations

The introduction of surrogacy organisations that are regulated by the

HFEA

The organisational form of RSOs

Non-profit-making status

The appointment of a “person responsible”

The responsibilities, skills and qualifications of the person responsible

Recordkeeping on the new pathway

HFEA powers to ensure that RSOs comply with their licence conditions

Health screening of surrogates, their partners and intended parents

Consultation

Analysis

Implications counselling

Consultation

Analysis

Legal advice

Consultation

Analysis

Criminal record checks

Consultation

Analysis

Insurance for the surrogate

The welfare of the child

Consultation

Analysis

The provision of information as an eligibility requirement for the new pathway

Consultation

Analysis

The scope of the new pathway

Traditional surrogacy agreements

Surrogacy agreements involving anonymously donated gametes

Surrogacy arrangements with an international element

STATEMENTS

Consultation

Analysis

The content of the Regulated Surrogacy Statement

Declaration that the child’s home will be with the intended parents

Further contents of the Regulated Surrogacy Statement

A fixed delay before entering into, and automatic expiry of, the surrogacy agreement

The current law

The paramountcy of the child’s welfare

Application for, and grant of, a parental order

Six-month time limit for an application for a parental order

The child’s home to be with the intended parents

The consent of the surrogate

The provision of information about the surrogacy agreement

Provisions of the current law that should remain the same

The paramountcy of the child’s welfare

The child’s home to be with the intended parents

Provisions of the current law that our recommendations would change

Application for, and grant of, a parental order

The six-month time limit for an application for a parental order

The consent of the surrogate

The provision of information in parental order proceedings

279


Allocation of parental order proceedings in the court system in England

and Wales

Allocation of international surrogacy cases

Allocation of domestic surrogacy cases

Release of the parental order report in England and Wales

Procedure in Scotland

The requirement to appoint a curator ad litem and a reporting officer

Further procedural reform

Current law

Payments currently made to surrogates

Authorisation of payments in excess of reasonable expenses

Criticisms of the current law

The scope of the scheme

Consultation

Analysis

Payment in advance

Consultation

Analysis

Categories of payment

Consultation

Analysis

Recovery of payments

Recovery by the surrogate

Enforcement of the payments scheme

Consultation

Current law

Birth certificates

Court records

Register of information maintained by the Authority

Introduction of the Surrogacy Register

Introduction of the Surrogacy Register

Content and maintenance of the Surrogacy Register

Including information about an intended parent who is not a party to

the parental order on the Surrogacy Register

Age of access to the surrogacy register

Access to information in the Surrogacy Register in other circumstances

Access to the Surrogacy Register to allow a surrogate-born person to determine whether their partner was carried by the same surrogate

Access to the Surrogacy Register to allow two surrogate-born people who were carried by the same surrogate, and who may or may not be

genetically related, to identify each other

Access to the Surrogacy Register to allow a surrogate-born person and the surrogate’s own children to identify each other

Other ways to access information on the new pathway

Access to information where a parental order is granted

Access to the parental order court file by a surrogate-born person

Register of Regulated Surrogacy Statements

Access to original birth certificate following the parental order process

AND ADVERTISING

Current law

Negotiating surrogacy arrangements on a commercial basis

Advertising

Criminal offences

The position of non-profit agencies

Matching and facilitation

Consultation

Analysis

Charging for negotiating and advising on surrogacy agreements

Consultation

Analysis

Advertising in relation to surrogacy

Consultation

Analysis

Common features of offences

Surrogacy and employment law

Current law

Statutory paternity leave and pay for the surrogate’s spouse or civil

partner

Maternity Allowance for intended parents

Time off work before and for the birth of the child

A rest space for breastfeeding

Further issues in relation to employment rights and surrogacy agreements

Analysis

Surrogacy and succession

Current law

Consultation

Analysis

Surrogacy and healthcare

Current guidance

How health services deal with surrogacy

Suggestions for reform of Department of Health and Social Care guidance

Midwifery practice and surrogacy

Analysis

International surrogacy destinations

Risks of international surrogacy

Costs of international surrogacy arrangements

Areas of reform

Nationality

Current law

Applications for registration of a child as a British citizen, and for a passport

Opening a file prior to birth of the child

Acquisition of British nationality on the new pathway

Amendment to definition of parent to exclude a surrogate’s spouse or civil partner

Analysis

Immigration

Current law

Experiences of applying for a visa

Opening a file prior to birth of the child

Bringing within the Immigration Rules the entry clearance route for

intended parents who are not legal parents under nationality law

Relationship between the child and the surrogate

Time limit for applying for a parental order

The EU Uniform Format Form

Consultee experiences with applications for an EU UFF

Analysis

Legal parenthood

Current law

Automatic recognition of parental status following an overseas surrogacy arrangement

Guidance on international surrogacy arrangements

Consultation

Analysis

Surrogacy arangements in the UK with foreign intended parents

Current law

Experience of surrogacy agreements in the UK involving foreign intended parents

Restrictions on removing children from the UK who are born to foreign parents through a UK surrogacy agreement

Glossary

We use the following terms within this Report.

We have carefully considered what terminology is most appropriate in the context of this Report. We acknowledge that not all of the terms have universally accepted meanings, or are used the same way in all the literature. The definitions contained in this Glossary reflect how terms are used in this Report.

Term

Definition

Altruistic / non-commercial surrogacy

A surrogacy arrangement in which neither the woman who becomes the surrogate, nor any surrogacy agency involved, makes a profit, and the arrangement is not enforceable as a matter of contract law.

Artificial insemination

A procedure where sperm are directly introduced into the reproductive system of a woman by means of a syringe or other artificial device. This process can be completed at home, without the involvement of a fertility clinic, or may take place within a clinic.

Assisted conception

An umbrella term which covers conception that does not take place through sexual intercourse. Examples include artificial insemination and IVF.

Baby / child / foetus

All these terms may be used in everyday language to refer to the baby that the surrogate is carrying during her pregnancy.

We have generally preferred to use the term baby or child, even whilst still in utero, unless the context is medical and reference to a foetus is, therefore, more appropriate. For example, while we generally refer to the surrogate carrying a child during pregnancy, we have also referred to a woman’s ability to gestate a foetus to term.

British Infertility Counselling Association

(“BICA”)

A registered charity that represents professional infertility counsellors in the UK.

Biological parent/parentage

A term which can be used to refer to gestational and/or genetic parentage. In this Report, we prefer to specify whether we mean gestational or genetic parentage, as applicable, but we may quote from sources that use the term “biological.”

Blended family

A family where, typically, one or both of the parents have children from previous relationships who come together to form one family unit.

The Children and Family Court Advisory Support Service (“Cafcass”)

The public body in England which liaises with the court to provide a parental order reporter in surrogacy cases.

The Children and Family Court Advisory Support Service Cymru (“Cafcass Cymru”)

The public body in Wales which liaises with the court to provide a parental order reporter in surrogacy cases.

Commercial surrogacy

A surrogacy arrangement in which the woman who becomes the surrogate and any agency involved charge the intended parents a fee which includes an element of profit. A commercial arrangement in jurisdictions overseas may also be characterised by the existence of an enforceable surrogacy contract between the intended parents and the surrogate.

Curator ad litem

In Scotland, a court appointed person whose duty is to act on behalf of the child in litigation, including a parental order application, with a duty of safeguarding the interests of the child.

In Scotland, a reporting officer is also appointed by the court to witness agreements to the parental order and to perform other duties prescribed by rules of court. The same person usually acts in both roles.

Domestic surrogacy arrangement

A surrogacy arrangement where the surrogate and intended parents are both based in the UK, and where all elements of the process, including pre-conception screening, (assisted) conception, pregnancy and birth take place in the UK. We use this term in contrast to an international surrogacy arrangement, where all or some of the elements of the process take place outside of the UK.

The European Convention on Human Rights (the “ECHR”)

The ECHR is an international convention in designed to protect human rights in Europe. Of most relevance to surrogacy are the rights contained in Articles 8 and 12 and 14 (a right to respect for an individual’s private and family life, the right to found a family, and protection from discrimination, respectively).

The UK is a contracting state to the ECHR, and has implemented its provisions in domestic law through the Human Rights Act 1998.

The European Court of Human Rights (the “ECtHR”)

An international court established by the ECHR, which decides on applications alleging that a contracting state has breached one or more of the rights guaranteed by the ECHR.

Embryo

An organism formed by the fertilisation of two gametes. In human pregnancy, from a medical perspective, an embryo is classified as a foetus from the 8th week after the fertilisation of the egg.1

Gamete

Human reproductive cells. Female gametes are called eggs and male gametes are called sperm.

Genetic parent or parentage

A term which refers to the one or both of the two persons whose gametes were used to conceive a child.

Gestational parent or parentage

A term which refers to the woman who gives birth to a child.

Gestational surrogacy

A surrogacy arrangement in which the surrogate is not genetically related to the child.

Gestational surrogacy involves the implantation of the surrogate with an embryo or embryos created in a process known as in-vitro fertilisation (“IVF”). These embryos may be formed of the intended mother’s egg and the intended father’s sperm, although donor sperm or a donor egg can be used.

We have preferred this term to that of “host” or “full” surrogacy which can also be used to describe this type of surrogacy arrangement.

Guardian ad litem

In Northern Ireland, a court-appointed person whose duty is to act on behalf of the child in a parental order application, with a duty of safeguarding the interests of the child.

The Human Fertilisation and Embryology Authority (the “HFEA”)

The statutory body that regulates and inspects all licensed fertility clinics in the UK. It also regulates human embryo research.

The Human Fertilisation and Embryology Authority’s Code of Practice (9th edition, revised October 2021) (the “Code of Practice”)

The Human Fertilisation and Embryology Authority publishes the Code of Practice to provide guidance to bodies such as licensed fertility clinics to help them comply with their duties under legislation. Guidance in the Code of Practice is also designed to serve as a useful reference for members of the public, including patients, donors and donor-conceived people.

Infertility

In the context of a heterosexual couple, the World Health Organisation defines infertility as a disease of the reproductive system defined by the failure to achieve a clinical pregnancy after 12 months or more of regular unprotected sexual intercourse.2 In the context of an individual, we use “infertility” to mean a person who is unable to gestate a foetus or unable to provide gametes for the creation of an embryo.

Intended parents

The persons who have initiated the surrogacy arrangement, and who intend to become the legal parents of a child born through surrogacy.

Individually, we refer to an intended parent who is male as an “intended father” and an intended parent who is female as an “intended mother”.

We prefer this term over “commissioning parent” (an alternative that is sometimes used) because of our view that the parties’ intentions are one of the defining features of a surrogacy arrangement.

In vitro fertilisation (“IVF”)

A medical procedure, used to overcome a range of fertility issues, by which an egg is fertilised with sperm outside the body, in a controlled environment at a fertility clinic, to create an embryo. The embryo is then implanted in a woman with a view to her becoming pregnant.

Legal parental status

A term that we use in this Report to describe a child’s legal parent, distinct from who has parental responsibility (in England and Wales) or parental responsibilities and parental rights (in Scotland), in respect of that child. We have preferred this term to “legal parenthood” as we think that this latter term can sometimes be used in the context of parental responsibility/PRRs and therefore risks confusion.

At common law the woman who gives birth to the child is their legal mother.3 In England and Wales the man whose sperm fertilised the egg is the legal father.4 There is a presumption that the mother’s husband or civil partner is the father, but this can be displaced.5 In Scotland he is the father if he was the husband or male civil partner of the mother between conception and birth, if he took steps to be registered as such in the Register of Births and Still-Births, or if a court grants a declarator of parentage in his favour.6

Where a woman gives birth to a child and her egg has not been used for conception, the HFEA 2008 provides that a woman who carries the child as a result of implantation of the egg and sperm (or embryo) has the legal status of a mother upon birth regardless of any genetic link to the child.7 Further special rules defining the legal parental status of a father or second female parent in such a situation exist also.8

Legal parenthood

A person or persons being recognised by law as being the parents of a child. We prefer the term legal parental status in this Report.

Maternity Allowance

A social welfare benefit payment made by the Government to pregnant women and new mothers who do not meet eligibility criteria for Statutory Maternity Pay.

New pathway

A term that we use to describe our overall new regulated surrogacy scheme which, if followed and, if the surrogate does not exercise her right to withdraw her consent within a defined period of time, would enable the intended parents to become the child’s legal parents at birth.

Northern Ireland Guardian Ad Litem Agency (“NIGALA”)

The public body in Northern Ireland which liaises with the court to provide a guardian ad litem in surrogacy cases.

Parentage

A term which focuses on the factual question of who shares a biological, principally genetic, connection with a child.

Parental order

An order that can be obtained from a court under sections 54 or 54A, HFEA 2008 which transfers legal parenthood from the surrogate (and her spouse or civil partner, where relevant) to the intended parents, and extinguishes the legal parenthood of the surrogate and her spouse or civil partner, if any.

Parental order reporter

In England and Wales, a court appointed person whose duty is to act on behalf of the child in a parental order application, with a duty of safeguarding the interests of the child.

Parental order process

A term that we use to describe the existing process of the intended parents obtaining a parental order (a post-birth order).

Parental responsibility, and parental responsibilities and parental rights (“PRRs”)

In England and Wales, the legal concept of parental responsibility means all the rights, duties, powers, responsibilities and authority which by law a parent of a child has in relation to the child and the child’s property, as set out in section 3(1) of the Children Act 1989.

In Scotland, the legal concept of parental responsibilities and parental rights (“PRRs”) means all the obligations that parents, and those acting in place of parents, have towards their children and the powers they have to fulfil these obligations, as set out in part 1 of the Children (Scotland) Act 1995. Section 1(1) of that Act defines parental responsibility as the responsibility:

  • a)    to safeguard and promote the child’s health, development and welfare;

  • b)    to provide, in a manner appropriate to the stage of development of the child —

  • (i)      direction;

  • (ii)     guidance, to the child;

  • c)    if the child is not living with the parent, to maintain personal relations and direct contact with the child on a regular basis; and

  • d)    to act as the child’s legal representative.

Section 2(1) defines parental rights as the right:

  • (a)    to have the child living with him or otherwise to regulate the child’s residence;

  • (b)    to control, direct or guide, in a manner appropriate to the stage of development of the child, the child’s upbringing;

  • (c)    if the child is not living with him, to maintain personal relations and direct contact with the child on a regular basis; and

  • (d)    to act as the child’s legal representative.

The concepts of PRRs include things such as bringing up the child, having contact with the child, consenting to the child’s medical treatment and naming the child.

The legal parents of a child usually have parental responsibility/PRRs by virtue of that status, but parental responsibility/PRRs can also be conferred on people who are not the legal parents.

Pre-birth order

A court order that, in some countries, in relation to surrogacy, is made before the birth of the child. It ensures that the intended parents are deemed by the law to be the child’s parents from the moment of birth. It is not possible to obtain a pre-birth order in England and Wales or in Scotland.

Pre-conception child welfare assessment

An assessment of the welfare of any child who might be born as a result of a course of action, such as a surrogacy agreement proceeding on the new pathway, or in relation to existing assisted reproduction procedures carried out at a licenced clinic.

Post-birth order

An order made by a court after the birth of the child, such as the current system of parental orders in operation across the UK. This order will transfer the legal parenthood of the surrogate (and her spouse or civil partner) to the intended parents, extinguish the legal parental status of the surrogate (and her spouse or civil partner), and allows a new birth certificate (equivalent) to be issued for the child containing the intended parents’ names.

Regulated Surrogacy Organisation (“RSO”)

Organisations created by the draft Bill which are licensed by the HFEA in order to be able to decide whether a surrogacy can proceed on the new pathway and to supervise those agreements.

Regulated Surrogacy Statement

A document signed by the surrogate, the intended parents and the RSO stating their intention or approval that the intended parents will be the parents at birth of any child born from the surrogacy agreement, and that the required statutory checks have been carried out. This document is mandatory on the new pathway.

Sexually transmitted infection (“STI”)

An infection which is passed from one person to another through sexual contact. Some STIs can also be transmitted in other ways, such as during pregnancy, childbirth, or through infected blood or blood products.

Social and / or psychological parent or parentage

A term which refers to the relationship which develops through a person acting in a way that we would associate with a parent, such as providing for a child’s needs.

Surrogacy Register (“SR”)

A register of surrogacy agreements created by the draft Bill, which holds information on the intended parents, surrogate, gamete donors, any fertility clinic used, and the surrogate-born child. It is maintained by the HFEA.

Surrogacy / a surrogacy arrangement

The practice of a woman agreeing to become pregnant, and deliver a baby with the intention of handing him or her over shortly after birth to the intended parents, who will raise the child.

Surrogacy agreement

An agreement between the surrogate and the intended parents regarding their intention to enter into a surrogacy arrangement.

Surrogacy contract

A contract setting out the terms of a surrogacy agreement. Surrogacy contracts are not recognised or enforceable in the UK, but are in some jurisdictions across the world.

Surrogacy team

Collectively, the surrogate and the intended parents who are entering, or considering entering into, a surrogacy agreement with each other

Surrogate

The woman who carries and gives birth to the child in a surrogacy arrangement, with the intention of handing him or her over to the intended parents shortly after birth, and transferring legal parental status to them.

From our discussions with those involved in surrogacy, we understand that surrogates themselves do not, generally, like to be referred to as the mother of the child, and so we have avoided the term “surrogate mother”.

Statutory Maternity Pay (“SMP)

A social welfare benefit payment made by the Government, through an eligible woman’s employer, during their maternity leave.

Traditional surrogacy

When the surrogate is genetically related to the child she carries because her own egg is used to conceive the child. A traditional surrogacy arrangement typically results from the artificial insemination of a surrogate with the intended father’s sperm.

We have preferred this term to that of “straight” or “partial” surrogacy which can also be used to describe this arrangement.

Trans man / trans woman

A trans man is a person who is registered female at birth, but who identifies and lives as a man.

A trans woman is a person who is registered male at birth, but who identifies and lives as a woman.

We acknowledge that it may not be necessary or appropriate in all contexts to refer to the person’s transgender status at all (for example following transition, many people may wish to be identified simply as a man or woman, as applicable). In the context of this Report, we have referred to a person’s transgender status to highlight the specific context in which surrogacy may apply to a transgender person.

ABBREVIATIONS OF LEGISLATION

Throughout this Report, we have abbreviated a small number of pieces of legislation which we refer to frequently. These abbreviations are set out in the table below:

Full name of legislation

Abbreviation

The Human Fertilisation and Embryology Act 1990 / 2008

The HFEA 1990 / HFEA 2008

The Surrogacy Arrangements Act 1985

The SAA 1985

The Adoption and Children Act 2002 / The Adoption and Children (Scotland) Act 2007

The ACA 2002 / AC(S)A 2007

The Human Fertilisation and Embryology (Parental Order) Regulations 20189

The 2018 Regulations

9 The Human Fertilisation and Embryology (Parental Order) Regulations 2018 (SI 2018 No 1412).

LIST OF COMMON ABBREVIATIONS

Other abbreviations frequently used in this report, including those used for consultees, are set out in the table below:

Abbreviation

Full name

BICA

British Infertility Counselling Association

Cafcass

The Children and Family Court Advisory Support Service (a non-departmental public body which represents children in family court cases in England. Cafcass Cymru represents children in family court cases in Wales.)

CEDAW

Convention on the Elimination of All Forms of Discrimination Against Women

ECHR

The European Convention on Human Rights

ECtHR

The European Court of Human Rights

HFEA

Human Fertilisation and Embryology Authority

IVF

In vitro fertilisation

Nagalro

The National Association of Guardians Ad Litem and Reporting Officers

NIGALA

Northern Ireland Guardian Ad Litem Agency

PROGAR

Project Group on Assisted Reproduction (a special interest group of the British Association of Social Workers)

PRRs

Parental responsibilities and parental rights

RSO

Regulated Surrogacy Organisation

SMP

Statutory Maternity Pay

SR

Surrogacy Register

STI

Sexually transmitted infection

Ministry of Justice, Family Court Statistics Quarterly - Family Court Tables January to March 2022 (June 2022) Table 4: Number of orders and children involved in Public and Private law (Children Act) applications made in the Family courts in England and Wales, by type of order, annually 2011 - 2021 and quarterly Q1 2021 - Q1 2022. Accessible at https://www.gov.uk/government/statistics/family-court-statistics-quarterly-january-to-march-2022 (last visited 23 March 2023); National Records of Scotland, Vital Events Reference Tables 2021 (Section 2, Table 2.02), accessible at: https://www.nrscotland.gov.uk/statistics-and-data/statistics/statistics-by-theme/vital-events/general-publications/vital-events-reference-tables/2021/list-of-data-tables (last visited 23 March 2023).

We understand that intended parents may not apply for a parental order in respect of their child for a variety of reasons including lack of awareness, cost and an inability to fulfil the current eligibility requirements, particularly in international arrangements. Those who do not seek a parental order may be parenting the child, even without formalising their legal position, as was the case in in X v Z (Parental Order: Adult) [2022] EWFC 26.

There were 624,828 live births in England and Wales and 47,786 in Scotland in 2021. ONS, Births in England and Wales: 2021 (9 August 2022). Accessible at https://www.ons.gov.uk/peoplepopulationandcommunity/birthsdeathsandmarriages/livebirths/bulletins/births ummarytablesenglandandwales/2021 (last visited 23 March 2023); National Records of Scotland, Vital Events Reference Tables: Table 3.01(b): Live births, numbers and percentages, by age of mother and marital status of parents, Scotland, 2000 to 2021. Accessible at https://www.nrscotland.gov.uk/statistics-and-data/statistics/statistics-by-theme/vital-events/general-publications/vital-events-reference-tables/2021/list-of-data-tables#section3 (last visited 23 March 2023).

From 117 parental orders in England and Wales in 2011. Ministry of Justice, Family Court Statistics Quarterly - Family Court Tables January to March 2022 (June 2022) Table 4: Number of orders and children involved in Public and Private law (Children Act) applications made in the Family courts in England and Wales, by type of order, annually 2011 - 2021 and quarterly Q1 2021 - Q1 2022. Accessible at https://www.gov.uk/government/statistics/family-court-statistics-quarterly-january-to-march-2022 (last visited 23 March 2023).


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