Articles
Surrogacy and what to think about Surrogacy can be more complicated than prospective parents may think. It is well worth looking into the legal position as part of initial enquiries for anyone considering a surrogacy arrangement. One of the unusual aspects is that most often, if a step is taken which is legal in another country, it is recognised under English law as being legal here. A good example is a marriage that is legal in another country is, in nearly all cases, recognised in England and if a couple meet the jurisdiction requirements they can get divorced in England. Surrogacy is one of the exceptions. It is possible in some countries to make all the surrogacy arrangement appropriately, through a clinic, and when the surrogate mother gives birth the prospective parents have both their names put on the birth certificate without there being any mention of the surrogate mother. In these countries, this meets the legal requirements. The parents then return to England with the birth certificate showing them as the parents of their child. However, as a matter of English law, they are not legally recognised as the child’s parents unless they obtain a Parental Order. An application can be made to the High Court for a Parental Order. They will need to provide the surrogate’s consent. If the surrogate mother is married, her husband is also legally the father of the child prior to the Parental Order. He will also need to consent. If a period of time elapses before the parents realise this, it may be difficult for them to contact and obtain the necessary consents. They will then be facing the process of proving the endeavours that have been used to try and trace the surrogate mother and, if appropriate, her husband. Until a Parental Order is obtained there could be unforeseen consequences. If the relationship breaks down and one
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parent leaves the country with the child the legal process of trying to obtain the child’s return could be extremely difficult if the parent who is still in England is not recognised as a legal parent. The Law Commission of England and Wales and the Scottish Law Commission have prepared a consultation paper which outlines proposals to reform the law of surrogacy. It is still in the early stages. However, the proposed changes would simplify the process for surrogates and intended parents and put in place safeguards for all participants. The proposed changes include:1) A new surrogacy pathway will be created whereby, subject to meeting the specified criteria, the intended parents would be considered as the legal parents from the child’s birth and also have parental responsibility. There would be a period of time after the birth when the surrogate could raise an objection, but the onus is expected to be on the surrogate to take this step. 2) On the proposed pathway CAFCASS Parental Order reporters would not be needed to assess the family or produce a report as they do at present. Safeguards would be put in place prior to conception with the intended parents being screened by the designated body overseeing the surrogacy (such bodies would have to meet the required criteria for this role). It is expected that the screening process would include: a) Medical testing b) Counselling for all parties c) Independent legal advice for all parties
Marilyn Bell d) Enhanced criminal records certificates 3) At present, the law requires a child born from a surrogacy arrangement to have a genetic link with one of the intended parents if a Parental Order is to be granted. It is proposed that this requirement is removed in the new pathway but only in cases of medical necessity. 4) As the law presently stands, no money or other benefit is to be acquired by the surrogate except for expenses reasonably incurred. The Court currently has discretion to authorise payments beyond reasonably incurred expenses and can do so retrospectively. The consultation paper is unclear at the moment as to what payments can be made to a surrogate and what should be restricted. It is thought, however, that there should be clarity on the new pathway. 5) The proposal is also for a national register of surrogacy arrangements. However, even under these proposed changes, the international surrogacy arrangements whereby complying with the law of the country in which the surrogate mother gives birth is complied with, will not change and a Parental Order will still have to be sought by parents in England. The process to obtain a Parental Order is complex and prospective parents may find if helpful to fully understand this at the beginning of the process rather than when they have new baby in their home. Marilyn Bell
Hertfordshire Law Society Gazette
