Surrogacy

If you are considering extending your family through surrogacy, whether in this country or abroad, there are many important legal issues to consider. The experienced family law solicitors at JMW can provide all of the advice and support you need to help make what can seem a challenging process as stress-free as possible.

To have a chat with our specialist fertility law and surrogacy solicitors, do not hesitate to get in touch. Simply call us on 0345 872 6666 or complete our online enquiry form and a member of the team will give you a call back at a time convenient for you.

About Surrogacy

Surrogacy is an increasingly popular way for people to extend their families. There are two different types of surrogacy:

• Straight or traditional surrogacy - the surrogate's own eggs are used, so she is biologically related to the child
• Host or gestational surrogacy - the surrogate is not biologically related to the child, and either the eggs of the intended mother or an egg donor are used

Either type of surrogacy is permitted under English law, subject to certain limitations. The law bans making surrogacy arrangements for commercial gain, which means it is not possible to make commercial payments for someone to act as a surrogate, advertise surrogacy services or advertise for a prospective surrogate.

Surrogacy Arrangements

A surrogacy arrangement is not legally binding. The court's involvement is needed after the baby is born to transfer legal parenthood, and/or in the event of a dispute as to whether or not the child will be passed from the surrogate to the intended parent(s).

Following a change in the law in early 2019, applications from either one or two intended parents are permitted, provided various other requirements are met.

Legal Parenthood in Surrogacy Arrangements

The surrogate will always be the legal mother of the child at birth. This cannot be altered either by agreement or pre-birth court orders. The surrogate will remain the child’s mother until such time as parenthood is re-assigned by either a parental order or by adoption.

A child can have no more than two legal parents at any one time. The identity of the child's second legal parent at birth depends upon a number of factors, including:

• The circumstances of conception
• Whether the surrogate is married and, if so, whether her spouse has objected to the arrangement
• Whether the intended father is biologically related to the child

The legal parent(s) will be named on the child's birth certificate upon registration. This initial birth certificate is replaced with the name(s) of the intended parent(s) after a parental order is made.

Surrogacy Agreements

A surrogacy agreement, or surrogacy contract, is a document that sets out the arrangements for the surrogacy. In some countries they are a compulsory part of the process. There is no legal requirement to have a surrogacy agreement in England and Wales, but it is always advisable to do so.

In England and Wales a surrogacy agreement is not legally binding upon any of the parties. This means none of the parties can be held to it in the event of a dispute. However, if disagreements arise in the future, it can be important evidence of the intentions and understanding of everyone involved, which will form part of the court's consideration when deciding how to resolve the matter. Preparing a surrogacy agreement can help to make sure that everyone involved is working on the same understanding as to how the arrangement will work and what is expected from them in the short and long term. A carefully drafted surrogacy agreement can help to reduce the prospects of a serious disagreement arising in the future.

Due to strict limitations on commercial surrogacy, English law does not allow legal practitioners to draft surrogacy agreements. This is not the case in all states and in some countries it is common for lawyers to be involved in the drafting of the surrogacy agreement, especially where they are legally binding. The contents of such agreements vary significantly and are usually tailored to the individual case.

It is not possible to confer legal parenthood through the use of a surrogacy agreement. Only the courts can do this. A surrogacy agreement can only set out who the parties intend will have parenthood.

If there is a dispute as to whether or not the surrogate will hand the baby over to the intended parents, the agreement will not finally determine how or by whom the child will be raised. The court will consider all of the options under the principles of the Children Act 1989. This involves considering each of the possible options and deciding what arrangement will best meet the needs of the child involved.

Parental Orders

Legal parenthood can only be transferred from the surrogate (and if applicable, her husband or civil partner) to the intended parent(s) by way of a parental order or an adoption order.

If neither of these orders can be made, the surrogate will remain the child's legal mother throughout the child's life and the court will have to find other ways to decide how the child should be cared for and who should make decisions about his or her upbringing.

The criteria for getting a parental order are set out the Human Fertilisation and Embryology Act 2008. All of the criteria must be met:

• Conception must have taken place by way of artificial insemination or another technique of assisted reproduction such as IVF, not sexual intercourse
• If there are two intended parents they must be in an "enduring family relationship" whether living together as partners, in a civil partnership or married. There can be complications if the intended parents separate before an order is made, though in some cases, these difficulties will be alleviated by the reform which allows single intended parents to apply
• Any intended parent must be at least 18 years of age
• The child must be biologically related to at least one of the intended parents. As there are strict limits on private adoption, an arrangement whereby the child is not biologically related to either intended parent may not be eligible for adoption either
• Single applicants must be biologically related to the child
• The child must live with the parents when the application is made to the court and when the order is made
• The application must be made to the court within six months of the child's birth. This used to be a strict rule, however recent court decisions have clarified that the deadline may be extended if the child's welfare requires it. There is a six-month window ending in July 2019 for single intended parents to apply for a parental order if their child was born before 3 January 2019
• Single applicants and at least one member of an applicant couple must be domiciled in the UK, Channel Islands or Isle of Man
• The surrogate (and, if applicable, her spouse) must give their full consent. Consent cannot be given for this purpose until the child is six weeks of age
• Payments should not have exceeded reasonable expenses, unless the court authorises additional payments retrospectively

The court will then consider the child's interests and decide whether or not an order should be made, taking into account all of the circumstances. The presumption is usually that it is in the child’s best interests for their legal status within the family unit of the intended parent(s) to be cemented.

It is always important to be honest and open with the court and with the parental order reporter, as complications can arise if it becomes apparent that certain aspects of the arrangement have been concealed. In extreme cases this could lead to the court refusing to make the order.

International Surrogacy and Legal Parenthood

Different countries assign parenthood in different ways and additional difficulties can arise as a result. Depending on how laws local to the arrangement interact with those in England, it is possible that either no-one is classed as the child's legal parent or that more than two people are. This can cause numerous complications, not least in respect of the assignment of nationality and immigration arrangements for bringing your child back to the UK after birth.

It is vital to obtain legal advice in both countries prior to embarking upon an international surrogacy arrangement. If you are considering entering into a surrogacy agreement abroad, we can provide the expert advice you need, including putting you in touch with specialist immigration solicitors in order to ensure a smooth return to the UK for you and your child. 

International Surrogacy

It is increasingly common for couples to travel abroad for surrogacy arrangements. The treatment of surrogacy varies significantly between countries. This can give rise to real difficulty.

Anyone considering an international surrogacy arrangement must do thorough research and obtain legal advice in both countries before commencing the process in order to ensure that your intended family can live together, and for legal parenthood to be transferred to you.

There are many reasons why people may choose to go abroad for a surrogacy arrangement, including greater availability of surrogates, cheaper medical and legal expenses, the possibility of being named on the birth certificate and obtaining greater certainty through pre-birth orders. However, regardless of how local law operates, the arrangement will still be analysed in accordance with English law upon your return home. You will still have to obtain a parental order, even if the name(s) of the intended parent(s) is/are on the birth certificate, otherwise the surrogate (and possibly her partner) will still be classed as the child's legal parent(s).

You must ensure that any arrangement complies with local law. A number of previously popular surrogacy destinations have now been closed to foreign nationals, and in many countries surrogacy is not recognised and can even be illegal.

The conflict between how this country and those abroad approach surrogacy and parenthood can add a number of complications, including making it difficult (or even impossible) to get the necessary documents to bring your child home. Planning in advance is therefore crucial.

One of the biggest considerations arising from foreign surrogacy arrangements is also how any financial arrangements will be looked upon by the English court if the arrangement has been made in a country that allows commercial surrogacy and payments over and above reasonable expenses have been made. Such payments will be carefully scrutinised by the court and a parental order will only be made if they are subsequently sanctioned.

Parental Orders for Those Living Abroad

As not all countries recognise surrogacy arrangements, it is sometimes necessary for people to use the jurisdiction of the English courts to regulate legal parenthood after a surrogacy arrangement. This can be the case whether the surrogacy has happened in the UK, or elsewhere.

It is sometimes possible for intended parents with a substantial connection to this country to be able to obtain a parental order, even if they are not physically in the country at the time.

Obtaining a Parental Order from the Court

The process is usually straightforward. The application is made using a particular form and a first court hearing will then be scheduled. On this occasion, the court will consider what information it needs to decide whether or not a parental order can or should be made. Once all of that information has been obtained, there will be another hearing at which the court will decide whether or not the order can be made and either make the order, or request further information before another hearing.

During the process, the surrogate (and if applicable, her spouse) will be asked to formally complete a consent form. There are certain procedural requirements for this, depending on whether the surrogate is here or abroad.

The intended parent(s) will need to prepare a witness statement setting out all of the information the court will require in order to find that they meet the criteria, and setting out the background of their family.

A key part of the process will be the preparation of a parental order report by CAFCASS. A CAFCASS Officer, known as a parental order reporter, will be assigned to the case in order to prepare a report for the court. This will include an assessment of whether a parental order would be suitable and most importantly, whether such an order best meets the needs of the child involved. In preparing the report, the parental order reporter will usually speak with all those involved with the arrangement and see the child.

If the surrogate does not oppose the parental order being made, their attendance at court can often be limited or excused altogether, especially if they live abroad.

Pre-Birth Orders

In England and Wales it is not possible to transfer legal parenthood from the surrogate (and her partner) to the intended parent(s) before the child is born. As a result, there is a period of time between the child's birth and a parental order being made where the surrogate retains legal parenthood and parental responsibility for the child, even though the child is living with and being cared for by the intended parent(s).

This usually requires careful co-operation between the surrogate and the intended parent(s), as certain aspects of the child's day-to-day care, such as medical treatment, will require the consent of those with parental responsibility.

In a number of countries, this problem is avoided through the use of pre-birth orders. These orders confer legal parenthood and parental rights on the intended parents immediately from birth.

Such orders will not be recognised in England and Wales. A parental order must always be obtained in addition for intended parents to be recognised as legal parents in this country.

Surrogacy - Practical Considerations

Employment law provides parental leave to intended parents. Not all employers are familiar with surrogacy arrangements, and our award-winning employment law team can advise you on your legal rights to time off and assist you in the event of problems. Our employment solicitors can also advise on your future rights to flexible working.

The intended parent(s) and (if possible) the surrogate should prepare wills to cover their existing families and the child in the event of unexpected events prior to parental orders being made. Our private client team can assist surrogates or intended parents to prepare wills and undertake inheritance and tax planning.

If you are considering an international surrogacy arrangement, you need to have all of the necessary visas and travel permits in place for you and/or your surrogate and ensure that you will be able to bring your child back into the UK. Immigration considerations can be complicated and there have been a number of cases reported where children have been stranded and/or rendered 'stateless'. We work closely with specialist immigration lawyers to ensure that all aspects of the arrangement are addressed in advance.

In all cases, there will be a period of legal 'limbo' between the child being born and the parental order being made when the child is living with the intended parent(s) but the surrogate has parental responsibility for them. This will be particularly relevant where consent for medical procedures needs to be provided. As more agencies (such as midwives and hospitals) become familiar with surrogacy arrangements, this can be negotiated by the use of consent forms and letters. Nevertheless, the surrogate may sometimes need to be more actively involved, or, in some cases, the court may need to make interim orders.

Disputes Between Surrogates and Intended Parents

There are very few reported cases of surrogates wishing to keep the child at birth, or of intended parents changing their mind and refusing to take over care of the child. In the event of a dispute, the court will have to adjudicate on who should care for the child and whether the child will see or spend time with the other adults involved.

Once legal parenthood is transferred, there is no presumption that a surrogate will have a continuing relationship with a child, and she has no legal right to see the child, receive information about his or her upbringing or have a say in how the child is raised. Once parenthood has been transferred, a surrogate can no longer make an application to the court as of right and would need special permission to do so. It is not, however, unusual for intended parents to remain on good terms with their surrogate and voluntarily provide updates and/or photographs from time to time.

If disputes arise between surrogates and intended parents about a particular aspect of a child's upbringing - for example, in respect of medical treatment or foreign travel - before the assignment of parenthood, the court can make the necessary decisions.

In all disputes, the contents of any surrogacy agreement will be relevant to the court's decision, but it will never be decisive. The court will only ever do what it considers to be in the child's best interests.

Alternative Orders in Surrogacy Cases

If the intended parent(s) cannot qualify for a parental order, the only other order that severs the legal relationship between the child and the surrogate (and her spouse) and re-assigns legal parenthood to the intended parent(s) is an adoption order.

If an adoption order is not possible, the court will look at other possible orders. There are several different options. These include:

• Wardship: the child will remain a ward of court during their minority. In this scenario, certain aspects of the child's upbringing must be authorised by the court before being implemented. The court can delegate day-to-day 'care and control' to any of the adults involved in the arrangement, and make numerous specific orders dictating what the adults involved in the child's life can and cannot do
• Special guardianship orders: this is a hybrid between an adoption and a child arrangements order, which brings with it an elevated form of parental responsibility that can override that of other holders
• A child arrangements order: this regulates with whom the child lives and confers parental responsibility on those people. It can also specify how and when, if at all, the child will spend time with the other adults involved and on what basis
• Specific issue and prohibited steps orders: these can regulate certain aspects of a child's upbringing, dictating what must or must not happen.

Why Choose JMW?

The fertility law and surrogacy solicitors at JMW are highly experienced in all legal matters concerning surrogacy and can provide the expert, top-level advice to make sure you are doing everything right in order to secure the outcome you are after.

We are renowned for our professional, positive and proactive approach and can help regardless of the complexity of the situation, providing the guidance you need, when you need it.