Surrogacy: Becoming recognised parents

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.

The Surrogacy Laws and Processes of England and Wales

A Summary

The law has been evolving but it still remains complex and, when compared with other countries, very strict.  Some countries, such as 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.

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 some of these are not negotiable;
  3. Keep a very close watch on the expenses and payments that you agree to make for the surrogate mother and that it cannot be construed as influencing her decision or overbearing her will.
  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 or by long delays with the passport office.  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.

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

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.

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.

The Court Process

The application is made and heard in the Family 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 then the judge will 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.

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 will heavily scrutinise your applicant and the expenses paid.

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 granted.

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.

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.

Once the intended parents have returned to the UK with the child, the application for a Parental Order will need to be made to grant the necessary recognition to the intended legal parentis.  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.

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.

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

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 Child Arrangements (Living With) 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 Child Arrangements (Living With) 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.

For more information contact us…