surrogacy an introduction
An Introduction to Surrogacy Surrogacy – the basics
Two basic principles underpin English surrogacy law:
(Report of the Committee of Inquiry into Human Fertilisation and Embryology, 1984)
1. There should be no financial inducement to encourage surrogacy arrangements and third parties should not profit from making such arrangements.
The law on surrogacy in England is retrograde and complex and has failed to keep abreast of social realities and medical developments. Whilst the law and processes can appear to be confusing and daunting, surrogacy is a growing trend for couples who are otherwise unable to have children.
Types of surrogacy Traditional surrogacy is where the surrogate's egg is fertilised with the commissioning father's sperm, making her the genetic mother. Gestational surrogacy is where the egg is provided by the commissioning mother or a donor.
Is surrogacy legal? The law on surrogacy varies from country to country. Surrogacy arrangements are permitted in places such as California, Ukraine and India. In other countries, such as Italy, Germany and Turkey, they are outright prohibited. The position in this country lies between those extremes. Whilst commercial surrogacy is unlawful, non-commercial surrogacy is allowed.
2
As a result, it is a criminal offence to make surrogacy arrangements on a commercial basis. Any person, company or agency which negotiates, makes or assists a surrogacy arrangement for payment also commits a criminal offence. No criminal offence is committed, however, if payments are made to the surrogate to meet her pregnancy-related reasonable expenses. Notwithstanding the prohibition on commercial surrogacy, the Court has the somewhat surprising power to give retrospective approval to a surrogacy agreement even in circumstances where payments over and above expenses have been made to a surrogate. 2. The surrogate cannot be bound by any contractual obligation to hand over the baby upon birth. The law does not recognise surrogacy as a binding contract, even if there is a signed agreement and expenses have been paid. There is very little the commissioning parents can do to secure their position prior to the birth, even in the case of gestational surrogacy where the baby is not genetically related to the surrogate.
Who are the legal parents?
What if something goes wrong?
When a child is born to a surrogate, English law recognises the surrogate as the legal mother, even if she is not genetically related to the child, and not the commissioning mother. If the surrogate is married or in a civil partnership at the time of treatment, the law recognises her husband or civil partner as the legal father or second parent of the child, unless it can be shown that he or she did not consent to the treatment.
If a surrogate refuses to consent to a Parental Order, the commissioning parents may need to consider other legal solutions, including applications for adoption or for a child arrangements order.
If the surrogate is unmarried or is not in a civil partnership, the commissioning father will be recognised as the legal father if he is also the biological father. If treatment takes place at a licensed fertility clinic, the commissioning mother may be treated as the second parent, or a non-biologically related man (who may be the commissioning father if a sperm donor has been used) may be treated as the legal father.
What is a Parental Order? In order for both commissioning parents to be recognised as the legal parents of the child and to extinguish the status of the surrogate (and, where applicable, her husband or civil partner), the commissioning parents must apply for a Parental Order within 6 months of the child's date of birth. There are various criteria which must be met for an Order to be granted, including: ●
The commissioning parents must be married, in a civil partnership, or a couple living as partners in an enduring family relationship. Single parents cannot apply for a Parental Order
●
One or both of the commissioning parents must be domiciled in the UK
●
At least one of the commissioning parents must be genetically related to the child
●
The child’s home must be with the commissioning parents at the time of the application.
International surrogacy Increasing numbers of commissioning parents travel overseas in search of a surrogate without being aware of the potential pitfalls of doing so. The law on surrogacy differs from country to country. Many people wrongly believe that, if a surrogate gives birth in a country where commercial surrogacy is legal and where the commissioning parents are recognised as the legal parents, they will not need to take any further steps to secure their legal status in England. There are no reciprocal international laws on surrogacy and English law will not recognise commissioning parents as the legal parents just because another jurisdiction does. An application for a Parental Order in England will still need to be made, and the commissioning parents should take both surrogacy and immigration advice at the earliest possible opportunity. The absence of the right visa or entry papers for a child following an international surrogacy may lead to the border authorities refusing a child entry to the UK. Whilst most problems are not insurmountable, lengthy and costly court proceedings can be avoided with proper planning and advice.
3
Key Contacts Services for individuals include:
Lois Langton Partner T: +44 (0)20 3755 5559 E: lois.langton@howardkennedy.com
Key Cases
Antonia Torr Solicitor: Head of Immigration Services T: +44 (0)20 3755 5835 E: antonia.torr@howardkennedy.com
●
wills and inheritance tax planning
●
efficient administration of estates
●
creation and administration of trusts and charities
●
trust and estate dispute resolution
●
marriage and cohabitation (pre-nups/postnups/cohabitation agreements)
●
relationship breakdown (divorce/civil partnerships dissolution and financial settlement)
●
our specialist children’s unit dealing with residence and contact, adoption and surrogacy, international child abduction and children disputes
●
residential property
●
employment law advice
●
reputation management and defamation
●
personal injury
●
immigration
(enduring relationships and issues of consent)
No.1 London Bridge London SE1 9BG DX 144370 Southwark 4 Tel: +44 (0)20 3755 6000 Fax: +44 (0)20 3650 7000 www.howardkennedy.com