Increasingly, individuals and couples who cannot have children naturally are turning to surrogacy. It is estimated that up to two thousand babies are born via surrogacy each year for couples living here. This includes babies born to surrogate mothers living overseas (95% of those born) as well as in Britain (5%).
All parents who are looking at engaging a surrogate to help them to have a baby should first check the laws that govern this area. There are a number of obligatory legal steps (and hurdles) that they should be aware of. Those who have already had a baby in this way but have, for whatever reason, not dealt with the legal side of things, should read on, and take the steps to retrospectively legalise the parenthood of their child.
For each child born to a surrogate mother, there should be a parental order to legally confirm who their parents are. However, very few applications for parental orders are being made. This is a huge problem, which could leave many children “stateless and parentless”. It has been described as a “ticking legal timebomb” by one High Court judge (Theis J).
A summary of some key things to be aware of are set out below.
The Law
The Human Fertilisation and Embryology Act 1990 (“HFEA 1990”), as amended by the Human Fertilisation and Embryology Act 2008 and the Surrogacy Arrangements Act 1985 are the statutes that govern this area. As with all areas of child legislation, the court's primary concern is the welfare of the child. Previous cases that have been before the court are also important (see further below).
Surrogacy Agreements
Surrogacy agreements are used widely but are unenforceable. They are not illegal in themselves, but it is illegal to negotiate a surrogacy arrangement on a commercial basis. This does not mean that making a payment or payments to a surrogate mother is illegal. However, you should think about what the payments are for and how “reasonable” the court would deem them to be.
The Child’s Parents
Determining who a surrogate child’s parents are is not as straightforward as you might think. The surrogate mother (the woman who bears the child) is regarded as the child’s mother and therefore has parental responsibility for the child. This is the case irrespective of whether the child has any genetic relation to her. The only way that she can lose her parental responsibility is if the child is subject to a parental order, or is adopted.
Things are complicated further by the marital status of the surrogate mother. If she is married or in a civil partnership at the time of insemination of the embryo (or sperm and eggs), her partner/husband/wife will be deemed to be the child’s other parent – again irrespective of their genetic connection to the child – unless it can be shown that they did not consent to the insemination of her.
Those who are not a child’s automatic parents must apply to the court for a parental order. HFEA sets out how these applications should be approached and what the court needs to consider.
Applications for Parental Orders - Restrictions
There are a number of other restrictions on parents wishing to apply for a parental order. These include (but are not limited to) the following.
At the moment, there must be two applicants for a parental order, who are in a happy, enduring relationship (and not related to each other). This means that a single parent cannot apply. Another stipulation is that child shares its genetic makeup with at least one of the applicants.
There are time and other restrictions to seeking a parental order - applications should be made within 6 months of child's birth (save for in some limited circumstances) and at the time of the application, the child's home must be with the applicants and at least one of the applicants must be domiciled in the UK.
The court will want to be satisfied that the birth mother (and any other automatic parents) fully understands and agrees to the surrogacy arrangement (and that she has not received payment for carrying the child other than those that are permitted – see further below).
Other Problem Areas
As should be clear by now, surrogacy is not straightforward – at least not from a legal perspective. Those who listen to BBC Radio’s The Archers will already know that recent plots have considered new laws that have a huge impact on the family law field. This time surrogacy is the hot topic – Ian and Adam are trying to have a baby with a surrogate mother. Ian professed in a recent episode that the law needed to be changed, and there are many in his position who would agree.
Indeed, surrogate children are born with more legal complexities than many will face in their whole lives. They may experience the above difficulties with who their parents are. Others may have birth mothers that don’t want to lose them, or (biological/commissioning) parents that change their minds and decide they don’t want them. Many will have followed the tragic story of Baby Gammy in 2014. He was born with Down Syndrome to a Thai surrogate mother, and his Australian (biological/commissioning) parents decided that they did not want him (taking only his twin sister back to Australia with them). Others will be born into situations where no parental order can be applied for, perhaps because one commissioning parent has died before they were born, or their parents have separated. Who a baby’s parents are can therefore be unclear.
Another issue (for babies born overseas) may be that they cannot travel with their parents to the UK. While we are not immigration lawyers (and strongly recommend that prospective parents who are looking to use a surrogate living overseas should take immigration advice early on), there can be difficulties in obtaining a passport for the child to travel. As far as the British Embassy is concerned, there are particular difficulties in securing a passport for a child if commissioning father is not genetically related to the child and/or the birth mother is married, but there are other hurdles too. Those domiciled outside of the UK, but living here, should take advice in the country that they are domiciled, and other parents should seek legal advice as early in the process as possible to ensure that there are no nasty surprises.
The issue of payment is difficult – it challenges on a political and intellectual basis. There are many countries/ states where surrogacy is effectively commercialised and regulated in that way. However, parents wishing to bring a baby born in such places back to the UK, should note that this does not necessarily mean that the UK courts approve such payments. For policy reasons, the UK government do not want surrogacy to become a commercial enterprise. That is understandable, but often overseas surrogate arrangements will involve fees and many do not see this as problematic - in fact surrogacy can be a life line for all involved. For now, be cautious. Reasonable payments can be made to a surrogate mother for their expenses. These must not be too low (so as to exploit the surrogate mother) or too high (so as to commercialise the arrangement or overbear the surrogate mother’s free will).
The Future Is Bright(er)
Prospective parents who are looking to surrogacy to have to extend their family should not be disheartened. The court does not want there to be parentless and stateless children living in the UK. There does seem to be a recognition that this is a rapidly developing area where the clunky law needs to be updated. This is highlighted by the court accepting applications for parental orders that are made after the 6 month deadline, and an apparent acknowledgement that the law in relation to single parents applying for a parental order must change. This followed the case of In re Z (A Child) (Surrogate Father: Parental Order)[2015] EWFC 73. It was expected that this would happen before the end of 2017, but Brexit has delayed things….
Take advice from a lawyer with expertise in this field early on, so that you can be properly prepared and the route as smooth as possible at this happy time.