Trends in Surrogacy Law and Family Building in 2022 in England and Wales

31 March 2022

The latest Family Court (England and Wales) Quarterly Statistics have just been published by the Ministry of Justice for October to December 2021. They provide useful information about trends in surrogacy. Prior to the Covid-19 pandemic, we saw an upwards trend in surrogacy. However, for a second year running there has now been a five percent decline in the numbers of parental orders granted compared with pre-pandemic surrogacy activity.

Parental orders for surrogate-born children

Pre-pandemic, we saw increasing numbers of parental orders being granted in England and Wales. In 2011, a total of 117 parental orders were granted, rising to 374 in 2018 and 444 in 2019. However, the latest MOJ Statistics record that a total of 424 parental orders were granted in the Family Court in England and Wales in 2021, whilst 421 were granted in 2020. This indicates a noticeable (five percent) decline in the grant of parental orders for surrogate-born children.

Overall birth rate in England and Wales

The global Covid-19 pandemic has disrupted our personal and family lives and our family building arrangements. Data analysis shows that the decline in the grant of parental orders for surrogate born children also correlates with an overall decline in birth rates in England and Wales in 2020. There were 613,936 live births in 2020, representing a noticeable fall of 4.1 percent compared with 2019. The total fertility rate in England and Wales also reached a record low in 2020, decreasing to 1.58 children per woman according to The Office For National Statistics (utilising data from the 2021 census).

Surrogacy and family building in 2022

Against this emerging picture of a decline in birth rates and the grant of parental orders for surrogate-born children in England and Wales during the Covid-19 pandemic, we must now also factor in current economic trends bringing higher prices and rising costs of living. Furthermore, there is currently considerable anxiety, disruption and uncertainty caused by the recent outbreak of war in Ukraine and associated geopolitical implications.

So, what does this all mean for surrogacy practice and family building looking ahead in 2022? This emerging picture creates a range of questions for fertility patients, prospective parents and families. Should I delay starting a family to see what happens to the economy and my personal finances? Should I take the next step with my partner in these uncertain times and try for a baby? Should I freeze my eggs or create embryos for use in fertility treatment at a later date? Should I think about importing my frozen eggs, sperm or embryos into the UK? Should I enter into a UK or international surrogacy arrangement? What are my options for having a baby if my relationship fails due to a change in circumstances? Will I have legal parentage and parental rights for my child?

The Law Commission of England and Wales and the Scottish Law Commission is also due to publish its final report on surrogacy law reform and draft legislation to create a new legal pathway to parenthood later this year. In doing so, it is hoped that this will bring about much-needed reform of outdated surrogacy law, reduce existing legal uncertainties and restrictions and improve surrogacy practice in the UK.

Top tips for family building

As such, the demands, complexity and expectations associated with modern life mean it is very important to proactively manage personal family building goals and family plans.  My top tips are:

  • Check, preserve and protect your fertility (e.g. fertility testing, egg, sperm and embryo freezing).
  • Ensure careful management of genetic aspects of family building (e.g. genetic screening, genomic medicine and genetic identity issues where donor gametes are used).
  • Put together a viable family building action plan, don’t leave creating a family to chance.
  • Review your finances and budget for family creation, fertility treatment and raising a family.
  • Get expert legal advice on the issues and outcomes associated with fertility treatment, family building, donor conception, surrogacy and modern family life (e.g. storage and use of gametes and embryos, legal parentage, parental responsibility, birth certificates, arrangements for the care and upbringing of children).

Need a surrogacy lawyer or a fertility lawyer? If you require expert legal advice concerning a surrogacy arrangement in the UK or internationally and you would like to discuss your situation please contact Louisa Ghevaert by email  or by telephone +44 (0)20 7965 8399.

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