Hundreds of families have a child through surrogacy in the UK each year. The first IVF child was born in 1978 and a committee was set up by the government to look at the social, ethical, and legal implications of these developments. Scientific advancement in various forms of assisted reproduction has meant that the creation of potential legal and ethical problems and huge complications.
Is Surrogacy Legal in the UK?
Surrogacy is legal in the UK, but surrogacy arrangements where the surrogate mother is paid, known as commercial arrangements, are a criminal offence within surrogacy laws in this country.
Under some legal systems, for example Italy, Germany and Turkey, surrogacy is simply not allowed. In others, commercial surrogacy agreements are permitted, for example California and India, and perhaps sometimes even encouraged.
The position in the UK lies between those extremes: whilst commercial surrogacy is unlawful, surrogacy itself is not, but no surrogacy agreement is legally enforceable as such. Those who enter into surrogacy agreements will have to take account both of the law of that country and also of the UK.
How Does Surrogacy Work?
Surrogacy is defined is: “The practice whereby one woman carries a child for another with the intention that the child should be handed over at birth”.
Who is the legal ‘Mother’?
The surrogate mother is classed as the official ‘mother’ until the position is sorted out legally. English law applies whether the surrogate ‘mother’ is in the UK or any other country at the time of her treatment. If you are planning to go down this route in order to conceive, you need to take account of the surrogacy laws in the UK as well as the country you visit for fertility treatment, and in which the surrogate mother lives. The surrogate mother cannot herself surrender parental responsibility for the child.
Surrogacy Laws in the UK – Parental Order
The Court in the UK can make orders to transfer parental responsibility to the couple who have asked the surrogate to carry the baby. However, there are many pitfalls and it has to be the right type of order to ensure that parental responsibility is not to be shared with the surrogate.
A sperm-donating father’s position is different to that of the female (or partner) of he couple. He is the genetic father of the child. The marital status of the surrogate mother is important; if she is married, and unless the husband didn’t consent to treatment, the child that is born is treated as a child of the surrogate mother and her husband. If the surrogate is not married, then the position of the sperm-donating father of the couple is similar to a father who is not married in this country; he is entitled to seek ‘parental responsibility’. The surrogate and her husband can consent to a Parental Order, but the Court in the UK cannot just ignore them.
Who Can Apply for a Parental Order in the UK if the Surrogate is From Another Country?
- It isn’t possible for a single person to apply for such an order;
- The applicants must be a ‘couple’ (it used to be that only married couples could apply);
- From 2010 the law as extended so that those in civil partnerships and couples living as partners ‘in an enduring family relationship’ could apply;
- Both of the couple must be over 18 years of age.
Expenses Paid to the Surrogate
Because it is illegal to pay for a surrogate to carry a baby for you under the UK surrogacy laws, the Court will look at how much the surrogate from another country has been paid when you apply for a parental order in the UK.
The law in this country restricts payments to expenses that are reasonably incurred. No money or benefit should have been given or received for the making of the order, the handing over of the child, or the arrangements, unless the court authorises the payment.
The result being that the child’s welfare, throughout its life, is the most important consideration.
Potential for Legal Complications
There can be conflict between the UK law and law in other countries. If you travel abroad for this sort of treatment, you should take legal advice in this country and English law to be sure of the potential problems that will confront you and how they can be addressed.
Reliance on advice from overseas agencies is dangerous as the provisions of our domestic and immigration law are often not fully understood.
You need to have ‘entry clearance’ from the Immigration authorities in this country. What is the surrogate mother refuses to hand over the child? If she is married, she and her husband can potentially turn around and refuse to hand the child to you.
Where the surrogate is potentially paid more than ‘reasonable expenses’, the Courts in this country find the situation where they have to assess the expenses paid to a surrogate uncomfortable as they will also have to weigh up the facts of your case and consider the child’s welfare.
If you need advice on the English law in the situation of surrogacy, either before you embark on this sort of treatment or because of problems that have arisen during the process, contact us and we can help. If you need a solicitor or help too, we can help you to find someone with the relevant expertise to assist.