Surrogacy Law in more detail…

Our surrogacy lawyers provide advice below on the current surrogacy laws:

From 6th April 2010 the surrogacy rules were revolutionized regarding the assignment of parental rights and the recording of non-biological parents on a child’s birth certificate.

How the law works and how it will effect your specific circumstances is explored below, but if we do not address all of your questions please contact us for more information.

Governing Acts that will apply include:

  1. The Surrogacy Arrangements Act 1985 governs the parties activities and the arrangements for surrogacy in the UK.
  2. The Human Fertilisation and Embryology Act 1990 regulates the rights and responsibilities assigned to the parent/s
  3. The rules on parental orders which were specifically created for surrogacy.

Found a Surrogate do you need a formal agreement?

If you proceed without an agreement, known as an informal arrangement, you as the donor or the intended parent can be in a vulnerable position. The likely scenario is that can arise giving justification to a formal process can include: the surrogate deciding to keep the baby herself; refuse to give you contact; playing an active role in the child’s upbringing even though she agreed not to etc.

A formal arrangement sets out all the agreed terms before anything has been done.  Although this is not binding or legally enforceable, it will clearly set out your intentions and the family courts are showing some sympathy to these arrangements.  Solicitors are not able to draft or negotiate these arrangements for you.

Once the baby is born you will have 6 months to apply for a Parental Order and register as the intented parents.  When the Parental Order is granted, a new birth certificate will then be issued showing the biological parent and the other parent, it will not record the birth mother. As intended parents you then acquire all the rights and responsibilities that the biological parents would have.

Our role is to help you complete this form and guide you through the process, having already prepared you for what is expected and any hurdles you may face.

Frequently Asked Questions ?

If we use a surrogate abroad will we still be legal parents in the UK?

The Human Fertilisation and Embryology Act 1990 does permit couples to have an arrangement with a surrogate mother overseas and it does permit you to acquire parental rights regonised in the UK. However, if you pay her over and above what is permitted under UK legislation the court can and has denied a parental order.

What can I pay a surrogate without affecting my right to a Parental Order?

You are permitted to pay only “expenses reasonably incurred”, such as compensation for time off work, medical bills and living or care expenses.  Anything that can be seen as simply a transactional fee can cause you serious issues at court in obtaining parental rights.

As a gay father can my civil partner have parental rights?

If you register the surrogacy agreement and follow the procedures your civil partner can be recorded on the birth certificate as the ‘other parent’ and will acquire full parental rights. If done correctly and within 6 months of the babies birth, the certificate is reissued with these details. Gay parenting is becoming easier

If we have a baby through surrogacy can we still take maternity or paternity leave?

At present sadly no. Only mothers who have been pregnant or some who have recently placed adopted babies can benefit from the statutory benefits.

What happens if we do no register within 6 months of the birth?

In simple terms you risk losing the child. This can be a particular problem if you divorce or dissolve your partnership and the non-biological parent has not been registered as he/she will have no parental rights and potentially no rights to contact. If you bring a child back from abroad and fail to register you could risk losing the child altogether or the surrogate may decide to apply to take back her child. Know the law and understand how to protect yourself before entering into an agreement.

SURROGACY LAWS AND THE LEGAL PROCESS

IN ENGLAND AND WALES

Copyright: By a City Law Firm LLP

Introduction

Having a child is both an exciting and daunting prospect for any parent, but choosing to have a surrogacy arrangement can be even more daunting due to the complex issues involved.  Surrogacy arrangements are intricate and involve a number of different people all with different and sometimes conflicting roles.  Understanding the laws, risks, stages and the process can be very stressful and confusing. The objective of this chapter is to break down the process and laws into digestible stages so that we can simplify the issues in order for you to enjoy the process and ultimately remain in the driving seat at all times.

Choosing a surrogate mother is an emotional event, with some people choosing to use a family member or close friend whilst others use someone independent.  Often people will utilise clinics and surrogacy centres here in the UK or abroad. Although these service providers can give you guidance and advice they are not lawyers and we cannot impress upon you enough the importance of understanding the responsibilities, legal requirements and procedures required for your personal situation before you enter into a surrogacy arrangement - whether you use a clinic or not.  It is therefore encouraged that you should take legal advice before, during and after the conception/birth as being fully aware of your rights, the pitfalls and the procedures will promote a smooth and stress free process for all involved.

Part 1: The  Surrogacy Laws and Processes of England and Wales

A Summary

The law has been evolving.  However, the law and procedures remain very complex and, compared with other countries, very strict.  Some countries, such as India and some states in the US take a far more liberal approach, for example, allowing intended parents to be named immediately on the birth certificates as the parents, surrogacy agreements considered binding and in some countries payments to the surrogate mother are permitted.  It is for these reasons that many people considering a surrogacy arrangement are attracted to going abroad.  However, whilst it is immensely attractive to enter an arrangement abroad, if the intended parents are domiciled (a legal concept referring to where you consider your roots to be and intend to permanently live) in the UK, then English law will apply irrespective of the international position.  This can result in the intended parents having no status as the legal parents of the child in the UK despite the foreign jurisdiction acknowledging them as having full rights.   It is therefore vitally important that advice is obtained specific to the intended parents’ circumstances prior to entering into any surrogacy arrangement.

It has been considered by some that the law in England and Wales needs updating to bring it in line with other jurisdictions and reconcile it with international positions.  There have been some recent decisions in the High Court which have gradually begun to evolve this area of the law and it will certainly be interesting to see how this continues to develop.

Stage 1: Understand the key issues prior to any arrangement.

You need to understand the key factors that can prevent your surrogacy arrangement from being successful and from obtaining legal parental status.  I have highlighted in brief below some of the key aspects and difficulties which can arise but more detail on the same will be provided throughout this chapter:

  1. Firstly, you should note that although the terms of a surrogacy agreement may be considered by the court on any application it is not binding on the court and it can choose to overrule any aspect;
  2. There are strict deadlines you need to be aware of, which are discussed in greater detail below. However, you should be aware at the outset that these are not negotiable and the court cannot extend them under any circumstances;
  3. No more than reasonable expenses can be paid to the surrogate mother for the arrangement.  If it is considered by the court that more than such is paid to the surrogate mother then this could result in you being refused parental rights over the child.
  4. The court will not make an order without the consent of the surrogate mother (and her husband/civil partner) being obtained.  This is only considered valid after the expiry of a period of six weeks following the birth of the child.  If it is not possible to obtain the consent then the court can dispense with their consent however further advice should be obtained in this regard.
  5. If you have the child abroad, it is important that you do not risk your child being denied entry by the UK Border Agency by being prepared.  The child may need leave to remain or may need to apply for residency depending on your circumstances. Do not risk being denied access; get the facts before hand.

Stage 2  – Applying to court following birth to acquire full Parental Status and a UK Birth Certificate

1. What is a Parental Order?

In order for you, the intended parents, to obtain legal parental status here in England and Wales following a surrogacy arrangement (here or abroad) it is necessary to apply to the courts for a Parental Order.  Once a Parental Order is granted, a new UK birth certificate can then be issued naming you both as the legal parents thereby conferring all associated rights and responsibilities as with any traditional parents.  Sadly, until a Parental Order is granted, irrespective of what the law says in the country the surrogacy arrangement took place and where the child is born, English law will continue to recognise the surrogate mother (and her husband/civil partner, if she has one) as the legal parent.

2. The Application for a Parental Order

Why and when would you apply?

  • As the intended parents, you would apply for a Parental Order in order to obtain legal status and recognition as the parents of the child.
  • The application must be made to the court within six months of the child’s birth.  However, you must bear in mind that the consent of the surrogate mother will not be considered valid by the court until the ‘cooling off’ period of six weeks from the child’s birth has elapsed. This tight period of time must be adhered to as there is no ability to extend it. If you miss it your application will be denied.

Who can apply?

Previously, the law in England and Wales only permitted married couples to apply for a Parental Order.  The law has recently changed and from 6 April 2010 the Human Fertilisation and Embryology Act 2008 extended the right to apply for Parental Orders to unmarried couples.  This includes couples who are in a same sex relationship whether in a civil partnership or co-habiting. The law did not extend this right to single persons.

The Criteria for applying for a Parental Order

As mentioned above, the application for a Parental Order is regulated by very strict conditions which must be met in order for the court to grant the Order.

The criteria to be met are as follows:

1.   The child must be born to a surrogate as a result of conception taking place through artificial insemination.

2.   At least one of the applicants/intended parents must be the biological parent.

3.   The applicants/intended parents must be married, civil partners or co-habiting in an enduring relationship.  Single people can not apply.

4.   The application must be made more than 6 weeks after and within 6 months of the birth of the child

5.   The child lives with the intended parents/applicants at the time of the application and at the time the order is made.

6.   At the time of the application and at the time the order is made, either intended parent are domiciled in a part of the UK.  For these purposes, domiciled means where you consider your roots are and permanently live.  This is a complex term and specific legal advice should be sought in this regard.

7.   At the time of making the order the applicants/intended parents must be at least 18 years old

8.   The surrogate and her husband/civil partner have unconditionally consented to the application (any husband or civil partner will automatically be deemed to be the father or other parent of the child).  This consent must be given at least 6 weeks after the birth and such consent must be given freely and with full understanding.

9.   No money or other benefits, other than reasonable expenses, have been paid to the surrogate mother.  The court will consider this carefully and will decide what amounts to a reasonable expense on a case by case basis.  This will be considered further below, but as already mentioned this can lead to applications being rejected or difficulties in dealing with the application where the courts may view the arrangement to be commercial.

Stage 3 : The Court Process

The application is made and heard in the Family Proceedings Court (Magistrates Court). As mentioned above the court will issue an acknowledgement form to you requesting the specific consent of the surrogate and her partner to the Order.  You will therefore need to send this to the surrogate parents who will need to sign the forms confirming their consent and return this to the court.

At the first hearing, the court will usually arrange for a Parental Order Reporter to prepare a report and timetable any other directions it may require in order to assist in making a decision.  The  Reporter effectively acts as the eyes and ears of the court undertaking enquiries and investigations into the circumstances of the case and reports to the court their findings.  In an application for a Parental Order, their task is to report to the court on whether the conditions/criteria for applying for a Parental Order set out above are met and also to ensure that it is in the child’s welfare and best interests to make the order.  The court will then have regard to this report when considering making its decision.  Usually the officer will wish to meet with both of you and, where feasible, the surrogate parents.

The time it takes to prepare this report will depend on how busy the Reporters in the local area are and it could take anything from 3 to 6 months.

It may well also be directed that each party file a personal statement setting out their personal position. In order to ensure that your position is clearly and succinctly put to the Reporter it is advisable to have your lawyers prepare detailed statements on behalf of you and your partner and where possible for the surrogate mother before issuing the Parental Order application.  This will provide the Reporter with the background information they need to understand everyone’s intentions, personal circumstances and objectives and helps support your application.

The court will then hold a second hearing where it will consider the report of the Reporter and any other evidence presented.  On the basis that there are no issues and no one contests the application and the court is satisfied, the Parental Order should be granted.  If there are complications then the case may well be transferred to the County Court or the High Court.  Due to their complexity, cases involving international surrogacy arrangements are usually transferred to the High Court.

Following the Parental Order you can then apply immediately for a new UK birth certificate with both your names shown as the legal parents.

Part 2 - Reasonable expenses: What are these?

As stated above, surrogacy arrangements taking place in England and Wales are heavily regulated.  For example, a surrogacy arrangement is not illegal however it is illegal for the surrogacy to take place as a commercial arrangement or to advertise that you are looking for or willing to act as a surrogate. Likewise if applying for a Parental Order and your agreement in the US, for example, shows that you paid a fee for the surrogate’s services rather than just expenses the courts can deny your application.

So what ‘reasonable expenses’ are permitted?. There is no set budget only an array of guidance indicators and case law that we can use to advise you. Expenses are however, just that - costs incurred by the surrogate mother as a direct result of the pregnancy. So doctor’s charges, medication, travel, legal fees, in exceptional cases where there are difficulties with the pregnancy any additional medical costs or loss of income could push the expenses above what was anticipated which if evidenced is acceptable.  The court is keen to emphasise that the assessment of what constitutes a reasonable expense is done on a case by case basis and caution should be taken when relying on agency guidelines.  While these have some utility, each intended parent should satisfy themselves that the costs incurred are realistic.

On an application for a Parental Order the court will consider the expenses which have been paid.  If the court deems that more than reasonable expenses have been paid it may not grant the Parental Order or it may cause further questions and difficulties before the Order is made.

Basically, evidencing reasonable expenses to a court will require receipts, cheques, invoices and any others means by which you are able to show what the monies have been spent on and more importantly these are legitimate expenses for the pregnancy. The court will take an overall picture of the case.

Part 3 - Surrogacy Agreements

Surrogacy agreements are documents which are prepared as a form of contract between you, the intended parents, and the Surrogate mother.  Such documents can set out the specific terms of the arrangement such as the clinic to be used, expenses payable, documents they are required to sign etc.  In some countries these documents are legally binding on the parties however under the law of England and Wales any surrogacy agreement entered into is not binding on the court.  Therefore, in short, whilst the parties may have entered into a ‘contract’ as to the terms of their arrangement a court is not bound by the contents of the document and can make a decision very different to that which is set out as the intentions of the parties within the surrogacy agreement.  Whilst the courts are not bound by the contents of any surrogacy agreement entered into it may well have regard to the contents of any agreement in terms of it providing a background to the matter.  Ultimately any decision made by the court will not be based on the contents of the surrogacy agreement but as to what the court deems to be in the best interests of the child.

It is worth noting that it is a criminal offence for any solicitor to draft the terms of a surrogacy agreement or negotiate on your behalf. We can only advise you on the effect and meaning of the content.

Part 4 - Consent of the surrogate parents

One difficulty which can arise and has indeed arisen is where the surrogate mother refuses to consent to give up the child to the intended parents. As already mentioned she needs to provide her consent six weeks after the birth, but if she refuses to give consent then your application for a Parental Order may well be denied.   Hopefully such situations will remain few and far between however if an application is made to the courts the court will make a decision based on what it deems to be in the best interests of the child and, as above, is not bound by the terms of any surrogacy agreement although it may be supportive of your intentions at the outset.

Part 5 - International Surrogacy Arrangements

Given that it is not permitted for a surrogacy arrangement to be a commercial arrangement in the UK, it is becoming more common for intended parents to travel abroad where such arrangements are permitted and the law in that jurisdiction offers greater protection to them.  However, as stated previously, upon returning to the jurisdiction of England and Wales, English law will take precedence over the legal provisions of a foreign jurisdiction.

A surprising number of people enter into a surrogacy arrangement without obtaining any advice in respect of both their legal position as parents and, if the surrogacy is taking place abroad, in respect of the immigration status of the child.

In many foreign jurisdictions, a surrogacy agreement is binding.  However, as stated above, this is not the case in England and Wales and as such a court can overrule the terms of the same.  Also, in some jurisdictions it is possible for the intended parents to be automatically named on the birth certificate as the parents or obtain an order from the court granting the intended parents legal status prior to the birth of the child.  However, the law in England and Wales can differ dramatically to these provisions and not recognise the intended parents as parents despite the recognition given to them abroad. This can lead to a child being effectively parentless and stateless.

Once the intended parents have returned to the UK with the child, the application for a Parental Order is the same as set out above and the same criteria needs to be met.

It is essential that advice specific to the circumstances of your case is taken both in England and abroad in relation to parental status and immigration/citizenship matters.

We have set out below the main difficulties which can arise following a surrogacy arrangement involving an international element.

Reasonable Expenses for a Foreign Surrogate

One of the common pitfalls faced by parents returning with a child following an international surrogacy arrangement is that the arrangement has clearly been a commercial arrangement and more than reasonable expenses appear to have been paid to the surrogate mother.

A recent decision made in the High Court in the case of Re L 2010 specifically addressed the above difficulties and has made a fundamental change in the way the courts will now view the issue of ‘reasonable expenses’ in cases involving an international context.  The issue of what constituted a reasonable expense has always been unclear and dealt with on a case by case basis.  This still remains the case however the decision by Mr Justice Hedley, in this case, is that even where more than reasonable expenses have been paid, the court must have the child’s welfare as its paramount concern and therefore should not withhold the making of a Parental Order if it is in the child’s best interests to grant one in that it would cause more harm to the child if the Order were not made.  This has been further affirmed in the recent case of Re IJ 2011 where it was ordered that despite more than reasonable expenses being paid to the surrogate than would be usually accepted in England and Wales it was considered that the best interests of the child required the making of the Parental Order.

Immigration issues that can arise

If the surrogacy arrangement takes place abroad complications could arise if the appropriate immigration procedures have not been complied with resulting in the child not being allowed into the UK.  Immigration law and issues of citizenship are incredibly complicated and is very much determined by each case’s particular circumstances.

In general, on the basis that the intended father will be considered the legal parent of the child for the purposes of satisfying English legislation and he is a British citizen, then the child will normally be entitled to British Citizenship at birth.

If English Law does not consider and treat either intended parent as the legal parent then English Law may not treat your child as British at birth.  Serious difficulties can arise if the surrogate mother is married or in a civil partnership, as even if the intended father is the biological father, if the surrogate is married or in a civil partnership English law will recognise the surrogate’s husband/partner as the parent despite them having no biological link.  In order to avoid the above complexities, it is advisable to proceed with a surrogate who is single.  However, some intended parents have objections to this and specifically wish for the surrogate to be married or in a civil partnership and if this is the case then it is important you bear in mind the above potential difficulties.

If the child is not entitled to British citizenship at birth then the child may have no automatic right to enter the UK.

It is therefore essential that you seek specialist immigration advice prior to entering any surrogacy arrangement involving a foreign jurisdiction to ensure that both yours and the child’s position is protected and to ensure a smooth return to the UK following the birth of the child.

Advice in the foreign jurisdiction

If the surrogacy arrangement is taking place abroad it is of course important to obtain detailed legal advice from an expert in any foreign jurisdiction involved to ensure that the legal position there is fully understood.  It should be noted that while agencies can be helpful they may provide simplistic advice which may not adequately or comprehensively address your particular circumstances.

Part 6 - Common Questions

Q:  Do we need a Parental Order?

A:  This is a question we are frequently asked as people are rightfully concerned about involving the courts, especially given the strict conditions that need to be met and not least the time and expense which can be incurred.

The legal position and implications of not applying for a Parental Order depends on your legal status, but without one the non-biological parent can never be sure their rights to look after the child are protected.

If you the biological father are recognised, in law, as the legal father of the child then you are legally permitted to care for your child on the basis that your name has been entered on the birth certificate issued in UK.  However, the rights and responsibilities of the other non-biological parent, whether mother or non-biological father will remain unprotected. They will also not be liable for custody or maintenance in the event of your separation. This could lead to potential difficulties in the future such as if you are to separate or die.

If neither of you are recognised, in law, as the legal parents of the child then neither of you will have the authority or legal right to care for the child.  This includes making any decision in respect of the child’s welfare such as consent to medical treatment.  It is also worth bearing in mind that in some cases it is a criminal offence to care for a child if you have no legal right to do so. It will be necessary to involve social services in these circumstances.

In summary a Parental Order is in most cases the only or best means to ensure both parents can acquire and retain legal rights and responsibilities for their child.

Q:  If I can’t get or do not wish to get a parental order what other options do I have?

A:  If you decide not to proceed with a Parental Order application or it is refused then there are alternative options available to you in order to try and secure your position such as making an application to the court for an Adoption Order, a Residence Order or a Special Guardianship Order. However, none of these provide you with the status or recognition that a Parental Order would as being recognised as birth parents.

If you apply for an Adoption Order, this can be a slow and invasive procedure with the courts undertaking a detailed investigation into your circumstances.  If an Adoption Order is granted you will be issued with an adoption certificate (rather than a new birth certificate) and this will effectively mean that you are able to make all the decisions in relation to the child and all rights and responsibilities are conferred to you. It will extinguish the surrogate parents’ rights over the child.

A Special Guardianship Order will enable you to have Parental Responsibility (providing you with the ability to make the day to day decisions in the child’s life) but will not extinguish the surrogate parents’ rights with them still being considered the legal parent of the child.  You would not obtain parental status.

A Residence Order is an order that the child must live with you and this will provide you with Parental Responsibility (which enables you to make the day to day decisions in respect of the child’s life).  The surrogate would still, for the purposes of English law be considered the legal parent.

Q:When can I apply for a Parental Order and how long will it take?

A:.  Any application for a Parental Order must be made within 6 months of the birth of the child and there is no ability to extend this time frame.  You must bear in mind the six week cooling off period for the valid consent of the surrogate mother.

How long it will take to conclude the application will depend on the court and the Parental Order Reporter.  Generally speaking you will be looking at a time period of 4 to 6 months however if the case is complex it may well take longer.

Q: What happens if my partner and I separate during the pregnancy?

A: Under UK law you must be in an enduring relationship to qualify for a Parental Order as such technically you would no longer fit the criteria to make an application. That said the courts have taken the approach, more and more, that cases need to be assessed on a case by case basis and the interests of the child should be considered over and above everything else. This has not been fully tested and we await case law to confirm the courts position on this. However, in these cases you may need to instead apply for an adoption order or residency order.

Part 7 - Conclusion

It is hoped that the above has highlighted not only the procedure for applying for a Parental Order following a surrogacy arrangement but also provided a useful insight into the difficulties which are faced by those entering into such an arrangement and, more importantly, how those difficulties can be addressed.

The law in England and Wales is very strict for those entering into surrogacy arrangements and this has been for policy reasons, the main one being that it is illegal for an arrangement to be for commercial profit in order to try and prevent exploitation.  This has led to our legal system being far stricter than others and has led to a direct conflict in laws, especially given globalisation and the ease of travelling leading to couples choosing to go abroad.  The law has evolved over the last few years with decisions being made promoting the child’s best interests as the paramount consideration when making a Parental Order.  This is a vitally important step, as for all concerned, the child’s welfare and well being is the goal that all parties are trying to achieve.  The law is still developing and being tested so it will certainly be interesting to see how, as more cases are presented to the courts, the law continues to evolve.

Surrogacy arrangements are never going to be an easy way to have a family however if all parties are in agreement, each respective position is understood and steps taken to ensure they are protected this will at least assist in making your dream of having a

family a smoother journey.