Surrogacy is the perfect solution for couples who are unable to conceive a child, and is a growing area. It is, however, fraught with complications which should be considered with a family lawyer prior to decisions being made.
Initially consideration must be given to whether the couple are legally entitled to apply for surrogacy. Both of the intended parents must be 18 or over and must either be married, civil partners or cohabiting. A single person cannot apply.
There are two types of surrogacy:-
- Where the child is related to the surrogate i.e. by the surrogate being impregnated, either naturally or artificially.
- Where the pregnancy occurs through the transfer of an embryo through IVF. In this case the surrogate is not related to the child.
In order for the intended parents to become recognised as the legal parents of the child they must apply for a Parental Order through the Court. This order must be made within 6 months of the child’s birth. Once this is granted a new UK birth certificate can be issued showing the intended parents as the child’s legal parents. Until this is done the intended parents have no legal rights, and the surrogate mother remains the legal parent, as does her husband or civil partner if she has one.
It is important to note that a sperm donor is never regarded as the legal father.
To apply for a Parental Order, not only must the applicant couple both be 18 or over, and either married, civil partners or cohabiting, at least one of them must be the biological parent. The child must also live with the intended parents, and the child must have been born to the surrogate as a result of conception through artificial insemination.
So, for a Parental Order to be made successfully, how can the applicant couple prove that conception was through artificial insemination? That is the difficult if arrangements are made privately. Surrogacy through a licenced surrogate agency/fertility clinic is always advised.
Other important points to consider are that the surrogate mother, and in some cases father, must freely and unconditionally consent to the surrogacy, meaning they must fully understand the implications of what they are doing. Finally, the surrogacy can only be ratified by a Parental Order on the basis that the arrangement is not for profit. The surrogate mother can be paid nothing other than her reasonable expenses.
There are extra layers of complexity where the surrogacy has an international element.
Foreign surrogacy is sometimes seen as an option to get around the strict controls in the UK, i.e. with regards to paying the surrogate as a commercial arrangement.
This is all very well and good until the intended parents try and bring the child back into the UK. By bringing the child back to the UK, then English law will apply. This can create all sorts of complications. It can also result in the intended parents living in ignorance of the fact they may have no status as the child’s legal parents and no Parental Responsibility in England.
One final, very important, thing to consider is that the surrogate has the right to change her mind and keep the child. That is even the case if the baby is not her biological child. Surrogacy agreements are not legally enforceable in the UK, even if a contract has been signed. A change of the surrogate’s mind would create further legal challenges for the intended parents whereby they may be forced to apply for an Order under S8 of the Children Act or under inherent jurisdiction of the High Court. Not only is this stressful it can also be very expensive and not guaranteed to succeed.
Surrogacy, as can be seen, can be an excellent remedy for childless couples, but it can also be a minefield, and should not be entered into without the aid of legal advice from a qualified lawyer. Clare Cherry would be happy to offer advice on the legal issues surrounding surrogacy. Contact her on 01202 551863 or via our website contact form.