Surrogacy and the ‘Legal Parent’

Gemma Whitchurch, of family law solicitors, Irwin Mitchell, looks at some if the legal issues around surrogacy for those in the UK 

Surrogacy is when another woman carries and gives birth to a baby for the couple who want to have a child. For many childless couples and same sex partners it can enable them to have a baby when it would otherwise have been impossible.

There are two types of surrogacy:

1. Full surrogacy (also known as host or gestational). This involves the implantation of an embryo created using either:

• the eggs and sperm of the intended parents;

• a donated egg fertilized with sperm from the intended father; or

• an embryo created using donor eggs and sperm.

2 Partial surrogacy (also known straight or traditional). This involves sperm from the intended father and an egg from the surrogate. Here fertilization is usually undertaken by artificial insemination or intrauterine insemination.

If you are considering a surrogacy arrangement, it is crucial to take legal advice before you embark on the process. The law in this area can be quite complex and unless a parental order is made then the child’s legal parents may not be as you intended.

It is important to note that commercial surrogacy is illegal in the UK and as such is a criminal offence. Surrogacy agreements cannot be enforced and therefore caution should be given to anything that purports to be a surrogacy contract.

Under the law of England and Wales, irrespective of a biological connection, the woman who gives birth to the child is the child’s mother. This means that even if the child was conceived using the egg of another woman, the woman who gives birth will be the child’s legal mother.

The position of the ‘other parent’ is much more complex and varies whether the surrogate mother is married or unmarried, and in the case of the latter, whether the treatment takes place at a licensed clinic.

To realign parentage in a surrogacy arrangement, the intended parents must apply for a parental order. The effect of a parental order is to give the commissioning parents the status of legal parents in the ordinary way.

The Human Fertilization and Embryology Act provide that applicants for a parental order must be:

a) Husband and wife;

b) Civil partners; or

c) Two persons who are living as partners in an enduring family type relationship and are not within prohibited degrees of separation of each other.

Surprisingly this has not yet been amended to specifically allow for those applicants in a same-sex marriage, although one cannot envisage any problems if they were to apply for a parental order.

The only category of person excluded from applying for a parental order is a single parent which is in stark contrast to adoption where there can be a single applicant.

However, it is important to note that this does not stop a single parent entering into a surrogacy arrangements, whether in this country or abroad. In such a situation, legal advice should always be obtained.

To make a parental order two conditions must be satisfied:

a) The child must have been carried by a woman who is not one of the applicants, AND

b) The gametes of at least one of the applicants must have been used to create the embryo

The application must be made within six months of the child being born. However, there has been a case whereby the application was successful despite being made two years after the child’s birth.

In such circumstances, every case will be fact specific and in considering any application for a parental order the welfare of the child will always be the court’s paramount consideration.

The surrogate mother must give her consent to the making of a parental order and that consent must take place more than six weeks after the birth. It is therefore essential to make sure contact with the surrogate is maintained so that the required consents are given.

As commercial surrogacy is illegal, for a parental order to be made, the commissioning parents need to ensure that the only money that has been paid is in respect of reasonable expenses.

Gemma Whitworth

If money has been given that is not immediately referable to expenses, then before an order can be made the payments need to be authorized by the courts. This is a very careful exercise and it is advised that receipts and careful records are maintained of what payments have been made.

Commercial surrogacy is not illegal in all countries and so many couples look abroad to find the arrangements that best suit them. However international surrogacy has its own complications and there are many potential pitfalls to avoid.

In summary, it is vital for anyone considering surrogacy, whether in this country or aboard, to consider their legal position. Irwin Mitchell, have specialist family lawyers who can advise on all aspects of family and children law including surrogacy and adoption.
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