Surrogacy – make an informed decision

Year Published: 2014

Surrogacy is an emotional issue. Problems that have arisen following a surrogacy arrangement are frequently in the media.

In the UK, surrogacy is legal but it is important in the UK to understand that the law does not recognise surrogacy as a binding agreement on either party. There is very little intended parents can do to protect their position prior to the birth of the child even where the baby is genetically related to both intended parents and not to the surrogate.

Surrogacy is where another woman carries a baby for an infertile couple. There are two types of surrogacy, straight or host.

  • Traditional (Straight) Surrogacy: The surrogate uses her own egg fertilised with the intended father’s sperm. This is done by artificial insemination using a syringe or with the help of an infertility clinic;
  • Gestational (Host IVF) Surrogacy: The surrogate carries the intended parents’ genetic child conceived through IVF. Specialist doctors are needed for this treatment.

Do many surrogates keep the babies?

COTS (Childlessness Overcome Through Surrogacy) reports that around 98% of arrangements reach a successful conclusion.

There is no comprehensive legal approach to surrogacy. The Surrogacy Arrangements Act 1985 is the main Act governing surrogacy in the UK. It defines the key terms including ‘surrogate mother’ and ‘surrogacy arrangements’. Surrogacy arrangements are not illegal in the UK provided the surrogate mother does not receive payment for carrying the commissioned child.

Regardless of whether payment is made to the surrogate mother, all surrogacy arrangements are unenforceable.

Who is the legal parent?

The legal mother of a surrogate child is the woman who carries the child regardless of whether she is genetically related to that child (Human Fertilisation and Embryology Act 2008).

If the surrogate mother is married at the time of her treatment, that is placing in her the embryo or the sperm and eggs or an artificial insemination, the legal father is classed as the person married to the legal mother at the time of treatment – unless he did not consent to the treatment.

Likewise if the surrogate mother is in a Civil Partnership at the time of her treatment, her civil partner will be the legal second parent of the child, unless she did not consent to the treatment.

What about the father?

Where the surrogate mother is unmarried and not in a Civil Partnership, the legal father/second parent can be designated in two ways:

  • If no-one chooses otherwise, the commissioning father will be regarded as the legal father of the child as long as he is also the biological father;
  • If treatment takes place at a licensed fertility clinic, the surrogate mother can appoint the commissioning mother or a non-biological father as the second parent.

Sperm donors are not regarded as legal fathers.

Other countries

Thailand’s government has recently announced a review of all their fertility clinics in Thailand that conduct surrogacy.

In Australia it is currently illegal to pay for surrogacy except for medical expenses, so couples have to find someone willing to do it for nothing or look abroad.

In the UK surrogacy is legal. The main proviso is that no money other than ‘reasonable expenses’ should be paid out to the surrogate.

Parental Order

To obtain a Parental Order and legal parenthood for a child born out of a surrogacy arrangement and extinguish the status of the surrogate mother, the commissioning parent must be over 18, married, in a civil partnership or two persons living as partners in an enduring family relationship who are not related to one another.

At least one commissioning parent must have provided genetic material for the child.

The application for a parental order must be made during the six month period after the child’s birth. The application cannot be made in the first 6 weeks of the baby’s birth.

The court, when granting a Parental Order must be satisfied that no money or benefits were exchanged between the parties. The surrogate can only receive ‘reasonable expenses’ from the commissioning couple and the court must be satisfied with this.

Expenses

Whether expenses are deemed reasonable will depend on the circumstances of the case.

Surrogacy is an emotional topic; however it is clearly on the rise.

Dangers of Informal Surrogacy

Surrogacy arrangements are not enforceable by law. Negotiations on a commercial basis are prohibited. The statutory time limit for a Parental Order is six months from the baby’s birth.

It is an offence to commercially broker a surrogacy and it is illegal to offer or advertise that one is looking for a surrogate.

Surrogacy is increasingly common. The present legislation in the UK has created various issues for surrogate mothers, commissioning parents and the resultant children, as well as third party brokers.

Mrs Justice King dealt with the case of JP and LP 2014. A close friend of the Applicants seeking to be parents became a surrogate. She was inseminated with the genetic father’s sperm. The father and his wife separated and brought proceedings for a Parental Order under the Human Fertilisation & Embryology Act 2008 (HFEA). The application was lodged when the child was 7½ months old – beyond the 6 months statutory limit.

Mrs Justice King said surrogacy was increasingly common and an understanding and ability to make a proper HFEA application should be as much a part of the skills set of a competent general family practitioner as is a step-parent adoption.

Until parliament revisits surrogacy law, it remains out of step with the reality of reproductive practices.

For further advice on family law please contact our Family team on 0161 475 7676 or email [email protected].

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