Surrogacy is becoming a popular way for people to welcome a new child into their families. However, if you wish to extend your family through surrogacy, you should be aware that these arrangements can be complex and you should always seek specialist legal advice, ideally in advance of making any agreements.
What is surrogacy?
Surrogacy is when a woman carries a baby for another person or couple. There are two different types of surrogacy which are:
- Straight or traditional surrogacy in which the surrogate’s own eggs are used, making her the biological mother.
- Host or gestational surrogacy in which the eggs of either the intended mother or an egg donor is used. In this type of surrogacy, the surrogate would not be biologically related to the child.
Both types of surrogacy are legal in the jurisdiction of England and Wales however this is subject to certain limitations. For example, the law prevents you from making surrogacy arrangements for commercial gain, meaning you cannot make a commercial payment to someone to function as a surrogate or for advertising surrogacy services advertise surrogacy services or advertise for a prospective surrogate.
What are the legal implications of surrogacy?
Surrogacy arrangements are not legally binding in the jurisdiction of England and Wales and the court’s involvement is necessary after the baby is born to ensure legal parenthood is transferred. At birth, the surrogate will always be the legal mother of the child, and this cannot be altered either by agreement or pre-birth court orders. In order to transfer legal parenthood, you will need to apply for a parental order or adoption.
Further, a child can only have two legal parents at any one time and the identity of the child’s second legal parent at birth will depend on a variety of factors such as:
- The circumstances in which the child was conceived;
- Whether the intended father is biologically related to the child;
- Whether the surrogate is married and if so whether her spouse consents or objects to the arrangements;
- Who is named on the child’s birth certificate. At the time of registering the child’s birth, the child’s legal parents will be named on the birth certificate. However, the birth certificate will be replaced to include the names of the intended parents after a parental order has been made.
Although surrogacy agreements are not legally binding in this jurisdiction, it may be helpful to enter into a surrogacy agreement in case disagreements arise in the future. The court will consider such agreement to ascertain the intentions and understanding of everyone involved. This will assist the court when determining how to resolve any disputes. However, this agreement will not be binding upon the court and the court will need to consider all legal principles under the Children Act 1989 to ensure any arrangements are in the child’s best interests.
The requirements for a parental order are set out in the Human Fertilisation and Embryology Act 2008. All the criteria must be met, and it is crucial that you seek legal advice to ensure you are aware of the criteria before entering into any agreement. You should also be aware that there may be a delay between the birth of the child and a parental order being made. During this time, the surrogate may be the only individual with parental responsibility meaning she may be the only person able to make important decisions concerning the child’s welfare. For example, if the child requires medical treatment before a parental order is made, the surrogate’s consent may be required. This limbo period should be factored into any agreement reached to ensure these important decisions can be made.
If the intended parent/parents do not meet the criteria for a parental order, the only other order that severs the legal relationship between the child and the surrogate, and her spouse if applicable, and re-assigns legal parenthood to the intended parent/parents is an adoption order.
If an adoption order is not possible, the court will look at other orders such as:
- Wardship: the child will remain a ward of court during their minority. In this scenario, certain aspects of the child’s upbringing must be authorised by the court before being implemented. The court can delegate day-to-day ‘care and control’ to any of the adults involved in the arrangement, and make numerous specific orders dictating what the adults involved in the child’s life can and cannot do;
- Special guardianship orders: this is a hybrid between an adoption and a child arrangements order, which brings with it an elevated form of parental responsibility that can override that of others with parental responsibility;
- A child arrangements order: this regulates with whom the child lives and confers parental responsibility on those people. It can also specify how and when, if at all, the child will spend time with the other adults involved and on what basis; and
- Specific issue and prohibited steps orders: these can regulate certain aspects of a child’s upbringing, dictating what must or must not happen.
There are various other legal factors you need to be aware of if you are considering surrogacy as an option to welcome a new child into your family or if you wish to function as a surrogate. Therefore, you should seek legal advice at the earliest opportunity from a specialist family lawyer to ensure your arrangement is legally binding.
If you are considering international surrogacy, you should be aware that treatment of surrogacy varies between countries, and it is important to seek legal advice in both countries before entering into a surrogacy arrangement.
