Personal Law
November 6, 2019

Surrogacy - Time for a Change

A surrogacy arrangement is the practice whereby a woman carries a child for another person with the intention that the child should be handed over at birth to that other person, and usually their partner (regarded by law as the commissioning couple) to raise as theirs. The key legislation with regard to these arrangements are the Surrogacy Arrangements Act 1985 and the Human Fertilisation and Embryology Act 2008 and consequent regulations which were made under the 2008 Act.

It remains an offence in the UK to carry out commercial surrogacy arrangements, i.e. for the woman carrying the child to be paid. It is possible that the payment of reasonable expenses in connection with bearing a child can be permitted but any term of a surrogacy arrangement requiring payment of expenses is not enforceable. However, there is no definition of ‘reasonable expenses. Also bear in mind that a surrogacy arrangement is not enforceable by, or against, any of the persons involved in it.


Types of Surrogacy

There are two types of surrogacy, total surrogacy involves the commissioning mother donating an egg that is fertilised by sperm from the commissioning father before being implanted in the carrying mother (the surrogate). In this situation, the commissioning couple are therefore the genetic parents of the child but the surrogate is the legal mother of the child by virtue of giving birth. Partial surrogacy involves the artificial insemination of the surrogate using the sperm of the commissioning father.


The Parental order

It is, of course, generally intended that following the birth of the child he/she will be handed over to the commissioning couple. Generally speaking, the commissioning couple will not be the legal parents of the child at that point. For example, where a total surrogacy has taken place and the surrogate is married, then at birth she and her partner will be the child’s only legal parents. The commissioning couple (or one of them – as this is also allowed) can apply to the court for a Parental Order in relation to the child. A parental order, which generally takes effect from the date it is made, gives parental responsibility to the applicants (the commissioning couple) and extinguishes any parental responsibility the other person had for the child before that date, i.e. the surrogate mother and (if they had parental responsibility) her partner. Effectively therefore, the commissioning couple become the legal parents of the child.

The application for a parental order must be made within six months of the date of birth. The court is required to consider, as its paramount consideration, the child’s welfare throughout their life in considering whether or not to make a parental order. At the time the order is applied for the child must be living with the applicants (the commissioning couple). The applicants or one of them must be residing in the UK at the time of the application. It is also necessary that the consent of the surrogate and any other person (i.e. her partner) who is the legal parent of the child) must give their full consent to the making of a parental order again, within 6 months after the date of the birth.

There will be an inevitable delay between the birth of the child and the making of the Order. It is therefore possible that the child will be living with a couple who have no legal status in relation to the child and the only people who do are the surrogate mother and her partner. That is not a satisfactory situation, especially if the child suffers a medical emergency as the couple with whom the child is living with would not be able to authorise medical treatment and such authority would have to be obtained from the surrogate parents.


What happens in a disputed case?

There have been occasions when there has been a dispute between the surrogate mother, her partner and the commissioning couple as to whether the child should be handed over at all. Such a situation was recently considered by the Court of Appeal in Re H (a child)EWCA CIV1798. In that case the Court of Appeal stated that “The essential question in every case is: all things considered, which outcome will be best for the child? The Law does not take a special approach to decisions about surrogacy breakdown or other disputes within unconventional family structures. The welfare principle applies with full force in such cases; indeed, the more unusual the facts, the greater the need to keep the child at the heart of the decision, and to ensure that the interests of others prevail only where they are in harmony with the interest of the child”. In that case the Court of Appeal agreed with the trial judge’s decision- that it was best for the child to live with the commissioning couple (one of which was the genetic father) and continue to have contact on six occasions a year with the surrogate parents. Given that the surrogate parents did not agree to parental orders being made, the court had to deal with the situation by making child arrangements orders in favour of the commissioning couple (which gave them parental responsibility) and also making specific issue orders in relation to other matters.

This is a complicated area of the Law. There can be a gap between the child being born and the commissioning couple obtaining legal parenthood in relation to the child, even though the child will be living with them. An application to the court is required with the attendant delay and expense. There have been concerns expressed that any uncertainty in the current law may encourage couples to enter into surrogacy arrangements abroad and that they could therefore be subject to the risk of exploitation.

The Law Commission is currently working on a review of the laws surrounding surrogacy. In a recent consultation, the Law Commission proposed that instead of parental orders there should be a new ‘pathway’ for UK surrogacy through which the intended parents of a child can be registered as the legal parents on their child’s birth certificate. It is intended that the new pathway contains various safeguards including eligibility criteria and requirements for a written agreement, legal advice, implications counselling, health screening and registration of information for the child in the future. It is proposed that surrogates will retain a right to object within a short period after the birth, but if they do not then the parents would be registered as the legal parents. Should an objection be made then an application will have to be made to the Family Court for a parental order.

These proposals would therefore provide greater clarity and hopefully remove the need for a court application.

To discuss any family issues, please contact Simon Brown or a member of the Family team on 01892 526344.

The contents of this article are for the purposes of general awareness only. They do not purport to constitute legal or professional advice. The law may have changed since this article was published. Readers should not act on the basis of the information included and should take appropriate professional advice upon their own particular circumstances.

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