With all the recent Newspaper headlines about celebrity couples using surrogacy as a way of creating or extending their families, it is perhaps unsurprising that the number of couples exploring surrogacy as an option in the UK is on the increase. However, it is important for those considering surrogacy to remember that many of these Newspaper headlines are in respect of couples and arrangements which take place abroad, and, as such, do not comply with the law in the UK. Couples should be very wary of using these celebrity couples as a template for their own surrogacy plans.
No matter what the genetic make-up of a child, UK law regards the woman who carries and gives birth to the child as the legal mother. If she is married at the time of insemination or implantation of an embryo, UK law regards her husband as the legal father – unless it can be shown that he did not consent to the procedure.
This is the case wherever the surrogacy arrangement takes place ie. even if the surrogate mother is a foreign national residing abroad and even if the surrogate mother’s own home country regards the commissioning couple as the parents and provides documentation to this effect.
UK law does provide a procedure by which the commissioning couple can then acquire full parental rights for the child born. This necessitates an application to the UK courts for a Parental Order. If made, the Parental Order extinguishes the parental rights of the surrogate (and her husband if necessary) and vests all legal parentage in the commissioning couple. The surrogate mother and the legal father must give full and free consent for the Parental Order to be made. Such consent cannot be given before the child is six weeks old and the application must be made to the Court before the child is six months old.
Surrogacy contracts in the UK are illegal and are unenforceable. Surrogacy arrangements, however, are legal provided strict criteria are complied with. These criteria are designed to protect the altruistic nature of surrogacy and prevent commercial surrogacy taking place in the UK. It is very easy to unwittingly fall foul of these criteria and find yourself in circumstances where there is then doubt as to whether the Court can make a Parental Order. This leaves the intended parents without legal parentage for their child and facing the prospect of alternative legal structures to protect their family eg. adoption – which was never intended for use by parents in these circumstances and thus brings with it complications and unintended consequences.
Parliament has recently acknowledged that the law relating to surrogacy needs to change in the UK. This has been prompted as a result of UK law having been found incompatible with EU law and to be discriminatory. It is envisaged within the next two years a Law Commission Report will make recommendations as to change which will bring surrogacy law up to date with social change, although there is still a strong sense that the altruistic nature of surrogacy should be retained as opposed to there being commercial contracts introduced. In this area of assisted reproduction, it is really important that intended parents take proper legal advice both before and after their child is born as in every case there is a legal process that must be complied with if legal parentage of the child is as intended.
Liz Bottrill is a Partner in the Family Law Team at Laytons Solicitors with over 25 years’ experience in the field. She has a particular interest and expertise in the law relating to children and fertility. www.laytons.com