The decision to start a family is not always straightforward and sadly, even after this decision has been made, many families struggle to conceive naturally. As a result, it is becoming more commonplace to look at alternative options to have children such as IVF, surrogacy or adoption. With all these options, it is important to understand your legal position as it may not be as simple as you might expect.
Surrogacy has particular intricacies depending on your biological relationship to the child, the marital status of the surrogate mother and whether the arrangement is entered into domestically or internationally. In addition to the emotional journey of embarking on a surrogacy arrangement, it is also important to consider the legal implications of using a surrogate.
A crucial aspect of the law relating to surrogacy is the legal status of the parents. It is important to understand that in English law, when the child is born, the surrogate will be the child’s legal mother, even if she has no genetic link to the child. If the surrogate is married or in a civil partnership when she gives birth, then her husband/civil partner will be the legal father of the child, again regardless of whether there is any genetic link. If the surrogate is single, then the intended father will also be the legal father but only if he is genetically related to the child. Furthermore, in this situation the intended/legal father would not have Parental Responsibility for the child unless, for example, he is named as the child’s father on the birth certificate.
This could result in an unsatisfactory situation whereby neither of the intended parents have a legal relationship with their child at birth and instead the surrogate (and her husband/civil partner), who never intended to be a mother and father to the child, have got this legal relationship.
In order to rectify this situation, the intended parents would need to make an application to the court for a Parental Order. A Parental Order is required to grant the intended parents’ legal status as the child’s parents and to extinguish the legal status of the surrogate and her husband/civil partner. It would also give parental responsibility to the intended parents as opposed to the surrogate and her husband/civil partner.
Section 54 of the Human Fertility and Embryology Act 2008 governs Parental Orders and sets out the criteria that a court will apply when considering whether to grant a Parental Order in each case:
- The child must have been born as a result of a surrogacy arrangement, using the gametes of at least one of the intended parents thereby creating a genetic link;
- The intended parents must be either married, in a civil partnership or living together as partners in an enduring family relationship. Since January 2019 an individual can also apply.
- The application for a Parental Order must be made within six months from the day the child was born.
- At the time of the application and the making of an Order, the child must be living with the intended parents, and either or both of them must be domiciled in the UK, Channel Islands or the Isle of Man.
- At the time the Order is made, both applicants must be over the age of 18.
- The court must be satisfied that the surrogate and any other parent who is not an intended parent (i.e. the husband or civil partner of the surrogate) have given their consent freely and with a full understanding of what is involved. This agreement can only be obtained from the surrogate six weeks after the birth of the child.
- Unless it has been authorised by the court, no money or benefit in kind can been exchanged in connection with any aspect of the surrogacy arrangement, other than reasonably incurred expenses.
This criterion is applicable to both international surrogacy arrangements and domestic surrogacy arrangements. In the context of international surrogacy arrangements, it is important to be aware that England does not recognise such arrangements and therefore regardless of the law or the intended parents’ legal status in the country where the surrogacy occurred, a Parental Order is still required in England.
Although the criteria appears to be very definite, it is important to note that the courts have interpreted the criteria broadly as a means of prioritising the welfare of the child. Parental Orders have therefore been granted, for example, where the application has been made outside of the six-month timeframe and also to parents whose relationships have broken down and where they are now living in separate homes.
Given the complexities of surrogacy law, it is sensible to have the criteria in mind at the outset of any surrogacy arrangement. It may also be prudent to take legal advice at an early stage to fully understand your position. Helpfully the law might be changing in order to streamline the process. To find out more about these proposed changes please see our article.