Surrogacy is defined as an arrangement made, prior to pregnancy, that the intended parents will become the legal parents of a child born to a surrogate as a result of insemination or the placing in the surrogate of an embryo or an egg in the process of fertilisation or of sperm and eggs.
The Law relating to surrogacy is complex and if you are considering a surrogacy arrangement you should seek advice at an early stage. We cannot advise you or assist in drawing up a surrogacy agreement as it would be unlawful for us to do so but we can advise you about your legal position and the obtaining of a Parental Order. Contact our expert surrogacy solicitors today by calling 01256 630080.
Surrogacy & The Law
The Human Fertilisation and Embryology Act 2008 (HFEA) regulates surrogacy in the UK. This legislation is applicable to you regardless of which country the surrogacy takes place in. The legal mother is the woman who gives birth to the child and dependent on the circumstances surrounding the insemination or embryo transfer and her marital status, the surrogate’s husband/partner may be the second legal parent. The only way in which you can completely extinguish those legal rights is to apply for and obtain a Parental Order.
Unlike some other countries, commercial payments or arrangements for surrogacy are illegal in the UK. Should any contract be drawn up then it is not enforceable and it can cause problems after birth when you attempt to formalise the surrogacy.
If you enter into a surrogacy arrangement then this will not automatically make you the legal parents of the child after birth. To become the legal parents, you need to make an application for a Parental Order. If you do not have a Parental Order then one or both of the intended parents will not be the legal parents of the child. This can cause all sorts of complications such as; inheritance issues, contact (formerly known as access) disputes should the intended parents separate, disputes over where the child should live (formerly known as residence or custody) should the intended parents separate and may well mean having to involve the surrogate in decisions regarding the child.
Parental Orders
A Parental Order will transfer the legal status as a parent from the surrogate to the intended parents.
Only couples who are either married or in a civil relationship can apply together, though a single person can also apply on their own for a Parental Order. You must apply within 6 months of the child’s birth and at least one of the intended parents must be domiciled in the UK.
The child should also be living with the intended parents at the time of the application. Conception must be artificial with the child being related to at least one of the intended parents genetically. No money can have changed hands other than covering the surrogate’s reasonable expenses which the Court must authorise prior to making a Parental Order. You also need the surrogate’s consent, if the surrogate changes her mind part way through the pregnancy or after birth then this can cause huge problems.
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Surrogacy Court applications
When you make the application, the Court will list your case for a hearing. Provided all goes well then there should be two hearings in total. A Parental Order reporter will be appointed to report to the Court on the situation. If there are any problems then your case could be transferred to a specialist surrogacy Judge for them to consider.
If you are thinking about surrogacy whether as an intended parent or as a surrogate we recommend that you take legal advice prior to entering into the arrangement as there are many pitfalls and problems that can occur.
Surrogacy solicitors - Further information
In England and Wales, the law regards the birth mother as the child’s legal mother, even if she is a surrogate. If married, her spouse/civil partner would also be recognised as a legal parent.
So what’s the solution if the surrogate decides to keep the baby? The intended couple will have to consider their options and more than likely apply to the Family Court for a Child Arrangements Order.
The normal remedy in an uncontested surrogacy arrangement would be to apply for a parental order. This assigns legal parenthood and confirms who is responsible for the child. However, one of the conditions for this is that the surrogate must give her consent. If the surrogate does not consent, the court may still award custody of the child to the intended parents but cannot make them the legal parents.
The first thing to do will be to establish the legal parenthood of the parties before deciding the best legal remedy: These can be complex but the basics are:
- single surrogate – the biological father of the child can be named on the birth certificate and would therefore be the child’s legal father with parental responsibility
- married surrogate – the surrogate’s husband is the legal father (unless that is later changed by a parental order), leaving the intended parents in a legal vacuum
- surrogate is in a civil partnership – the same rules apply as if she were married
- surrogate has a long-term partner – the partner is not the child’s legal parent so the intended biological father could be named on the birth certificate.
If the surrogate wants to keep the baby in any of these cases, the intended parents must consider their options.
Applying successfully for a parental order can take between six and nine months. And if the surrogate and her husband/civil partner do not give their consent then your application could be doomed to fail.
Consent must be given at least six weeks after the birth (giving the surrogate a cooling-off period). Unfortunately for the intended parents, those six weeks give the surrogate time to bond with the child – possibly increasing the chance of them deciding to keep the baby. However, in most surrogacy arrangements it would be very unusual for the baby not to be handed over immediately after being born.
So what’s the point of all the time, expense and stress of applying for a parental order if the surrogate can simply dismiss your attempts by refusing consent? Unfortunately, UK surrogacy law is in desperate need of reform.
And what can you do if the surrogate refuses consent? All is not lost. You could apply for a Child Arrangement Order. In this situation the court would consider the best interests of the child
Some couples contemplating surrogacy look at the options abroad. They often choose a surrogate in the USA (an expensive choice), Ukraine, India or Thailand.
In each case you will be governed by the law in that country. Often – particularly in the United States – the law is better suited than the current UK legislation.
If you go through surrogacy abroad you will still have to apply for a parental order in the UK. That is because this country does not recognise other countries’ surrogacy laws.
Contact our surrogacy solicitors today
Our expert surrogacy solicitors have many years experience representing clients in this complex area of law. To start the process, contact our experienced surrogacy solicitors today by calling 01256 630080 to discuss how we can help with your situation.
