Surrogacy

Surrogacy is the process whereby a woman carries and gives birth to a baby on behalf of someone else.

There are two types of surrogacy:

Straight/traditional surrogacy – where the surrogate is both the genetic mother as well as the woman who carries and gives birth to the child; and Gestational surrogacy – where the surrogate has no genetic affiliation to the child and conception occurs when the embryo planted in her uterus is one created with the egg of another woman (either from the intended mother or a donor egg) and sperm (from the intended father or donor sperm). In this scenario, the embryo is created from the gametes of at least one of the intended parents.

Heterosexual, same-sex couples and single individuals are eligible to enter into a surrogacy arrangement.

It is illegal to enter into a commercial surrogacy arrangement, but both altruistic and compensatory arrangements are legal. The advertising and negotiating of a surrogacy arrangement is banned unless undertaken by a not for profit agency.

It is permissible to reimburse surrogates for reasonable expenses arising out of the pregnancy and retrospective authorisation for these expenses is sought at Court.

In England and Wales, surrogacy contracts are not enforceable by the Courts. Irrespective of any contact between the intended parents and the surrogate, in England and Wales, the surrogate is the legal mother of the child she delivers, even if she is not genetically related to the child and parenthood will only be conferred on the intended parents once a Parental Order is granted.

Although surrogacy contracts are not legally enforceable in this jurisdiction, parties often enter into a surrogacy agreement, to record the parties’ decisions on key issues and provide clarity. Whilst English lawyers cannot prepare or advise upon surrogacy agreements, we can advise on the legal implications, under English law, of entering into surrogacy agreements.

A surrogate cannot ‘surrender’ legal parenthood. There must be a Parental Order to alter the legal parenthood of the child.

Under UK law, the woman who carries and gives birth is the legal mother of that child, even if she has no genetic affiliation to it. Thus, until the intended parents obtain a Parental Order pursuant to s54 (or s54A) Human Fertilisation and Embryology Act 2008, the surrogate remains the legal mother of the child.

If the surrogate is married, her husband is generally the legal father and likewise the surrogate’s wife or civil partner is the other legal parent if she is in a same-sex relationship.  If the surrogate is not married, the intended father will usually be the legal father if he is the biological father.  However, if conception takes place at a fertility clinic in the UK, another adult can nominate a second legal parent, e.g., the intended mother or a non-biological father.

If the child is born in England or Wales, the surrogate as the legal mother of the child, and she will be named on the birth certificate as the mother, together with her spouse/ civil partner if they are the other legal parent.  If the surrogate is not married or in a civil partnership, then one of the intended parents may be registered as the father or second parent, so long as they attend in person for the birth registration.  If that intended parent is not the biological father, he/she will need to produce the HFEA forms signed to nominate him/her as a parent.

A Parental Order is a court order that grants legal parenthood to the intended parent or parents of the surrogate born child and permanently extinguishes the legal parenthood of the surrogate, and her spouse if she has one. The surrogate and her spouse must consent to the granting of a Parental Order.

Upon the granting of a Parental Order, the birth will be re-registered at the Registry Office and a new birth certificate will be issued naming the intended parent(s) as the legal parent(s) of the child.

The intended parent(s) must satisfy the family court that the granting of a Parental Order is in the child’s best interests. The child’s welfare is the court’s paramount consideration. In order for intended parent(s) to be eligible to apply for a Parental Order, they must fulfil the criteria below:

• The child has been carried by a surrogate as a result of embryo transfer or artificial insemination;

• The intended parent must be the child’s biological parent or if they are a couple, at least one of them must be biologically related to the child;

• If the intended parents are applying as a couple, they must be married, civil partners or living together as partners in an enduring family relationship. Single parents are now also eligible to apply;

• The intended parent(s) must apply for a Parental Order within six months of the child’s birth and although the court may extend this period in exceptional circumstances, do not rely upon this;

• At the time of the application and the date the order is granted, the child’s home must be with the intended parent(s).

• At the date they apply and the date of the order, the intended parent (or if applying as a couple, at least one of them) must be domiciled in the UK, Channel Islands or Isle of Man;

• The intended parent(s )must be over 18 when the order is granted;

• The surrogate and her spouse must freely consent to the making of a Parental Order (unless they cannot be found or are incapable of giving consent).  The surrogate cannot consent to the making of a Parental Order until six weeks and a day after the birth of the child (consent given prior to this period is not deemed to be valid); and

• The court must be satisfied that the intended parent(s) did not pay the surrogate (other than for reasonable expenses). Any payments over and above reasonable expenses will be retrospectively authorised by the court.

The intended parent(s) make an application to the Court for a Parental Order. CAFCASS would appoint a Parental Order Reporter, who will carry our welfare checks and provide a report for the Court. The intended parent(s) would have to file a written statement. We can assist with the preparation of this application, written statement and the process generally. There will be at least one court hearing in the Family Court, following which the court would make a Parental Order.

A Parental Order confers legal parenthood on the intended parents under UK law and extinguishes the parental rights of the surrogate (and any spouse). Without a Parental Order, one or both of the intended parents will not be able to exercise parental responsibility and make fundamental decisions concerning their child’s health, welfare and education or obtain essential travel documents. The child may also not be recognised for the purposes of inheritance and succession planning. It is advisable to obtain a specialist Will when having a baby via surrogacy.

Straight, or traditional surrogacy is where the surrogate is both the genetic mother as well as the woman who carries the child. The pregnancy is achieved either through artificial or natural insemination or IVF to create the embryo using the surrogate’s eggs and the sperm of one of the intended parents which is then implanted into the surrogate.

Gestational surrogacy is by far the most common arrangement and involves using either the intended mother’s egg or a donated egg, but not an egg from the surrogate. The sperm is either from the intended father or from a donor but there must be a genetic link to one of the intended parents so you cannot use both a donor egg and donor sperm. Although the surrogate will not be biologically related to the child, UK law determines that she retains legal responsibility for that child until it is transferred to the intended parent(s) via a Parental Order.

As is clear, surrogacy law is complicated and intended parents should always instruct a lawyer before entering into any agreement overseas. The lawyer will offer advice on the law and be able to assist you once the surrogacy arrangement is in place.

Once the child is born and back in the UK with the intended parents, it is important to ensure that there is no delay in applying for the Parental Order. This application cannot be made in the first six weeks (as the surrogate’s consent will not be deemed to be valid) and at least one of the intended parents must be domiciled in the UK.

Until the Parental Order is obtained the surrogate is still, under UK law, deemed to be the legal parent of the child, so decisions regarding the child, such as medical treatment, under law will require the surrogate’s consent until her rights are extinguished under a Parental Order.

Following the Law Commission’s review of our domestic outdated surrogacy laws in their 13th Programme of Law Reform, a wholesale programme of reform has been proposed and a draft bill is awaiting debate in Parliament.

A declaration of parentage can be made in respect of whether a named person is/was the parent of another named person. These can be used following errors in UK fertility clinics, following disputes about an individual’s parentage, including following conception arrangements, and by adopted individuals in respect of their birth parents.