Surrogacy and the law

We have all seen and heard the recent publicity surrounding Sir Elton John and his civil partner David Furnish having a baby boy named Zachary through the medium of surrogacy, but what does this actually mean in practice? Who are the parents of a baby born through this method and is it a realistic option for those couples who, for a variety of reasons, are not able to have children of their own?

A surrogate is “one that takes the place of another” and as most people are aware involves a woman becoming pregnant on behalf of another couple, and then once born, giving the baby up to them to care for on a permanent basis.

What is the law?

Surrogacy is actually legal in the UK – however, it is heavily regulated. The Surrogacy Arrangements Act 1985 made it a criminal offence to engage in commercial surrogacy and the offence is applied to anyone who received or expected payment for making the arrangements or negotiations. The Act made an exception for the surrogate herself and prospective parents and it provides for them to be able to make and accept some payment for the service.

There then followed the Human Fertilisation and Embryology Act 1990 which enabled people who use a surrogate to be recognised as a parent without the need to adopt the child. This is known as a Parental Order. However, it also amended the Surrogacy Arrangements Act, and made surrogacy agreements unenforceable in UK courts.

Therefore until a Parental Order is made, the intended parents are left in an undeniably insecure position as regards the future care of the child.

In 1998, concern was expressed about increasingly high sums of money being paid to surrogates, ostensibly as “expenses” and it was suggested that payments should be limited to documented expenses only. This, however, has never been set down in statue. By this point, several non-profit surrogacy agencies had come into existence and it was felt that they also needed to become regulated. Therefore the new Human and Fertilisation Act 2008 allowed such agencies to start charging reasonable expenses for their services, so long as they remained non-profitable. It also allowed surrogacy agencies to advertise their services for the first time.

These allowances suggest there is a growing acceptability of surrogacy as a practice in the eyes of lawmakers.

So, who are the parents of a child born out of a surrogacy arrangement?

The law says that the legal mother of a child born through surrogacy will, at birth, always be the surrogate mother, even if she is not the biological mother. This basically means that the intended mother has no legal status even if her egg was used.

If the surrogate mother is married and conceives a child artificially, her husband will be considered the legal father even if there is no biological relationship. The same applies in a same sex relationship – a gay woman in a civil partnership who is a surrogate mother will be the legal mother of the child and her civil partner will legally be the child’s second parent, thereby excluding the intended parents.

When the birth is registered in the UK, only those who qualify as legal parents (as described above) can be entered onto the birth certificate of the child.

So how can this be rectified?

The intended parents may apply for a Parental Order which, if granted, reassigns parenthood in the same way as a traditional adoption does. Once a Parental Order is made, a new birth certificate is issued naming the intended parents as the legal parents and any rights that others have are extinguished.

Who can apply for a Parental Order and what are the criteria for it?

1. The “intended parents” must both be over 18 and must be married, civil partners or living together in an enduring family relationship.
2. At least one of them must be a biological parent of the child and the Court can request DNA testing to establish this.
3. At least one must be domiciled in a part of the UK, Channel Islands or Isle of Man.

The arrangement itself carries a number of criteria:

1. The conception must have taken place artificially (which includes home insemination).
2. The child must have his/her home with the intended parents at the time of the application.
3. The surrogate mother and her husband (if she is married) must fully and freely consent to making the order. The surrogate mother cannot validly give her consent until the child is six weeks old. This is why the intended parents’ position is so insecure until an Order is made in their favour.
4. No more than “reasonable expenses” must have been paid, unless authorised by the court. What constitutes reasonable expenses depends on the facts of each particular case and although in practice the courts have shown a reasonably flexible approach, care needs to be taken.
5. The intended parents must submit their application no less than 6 weeks and no more than six months after the child’s birth. This time limit cannot be extended.

If one or more of these criteria are not met, it may mean a Parental Order is not made and the intended parents are left with the more traditional options such as Adoption, Special Guardianship or Residence Order applications. The latter two options can result in an unsatisfactory and very much unintended situation where at least one, and quite possibly both, of the “parents” on the child’s birth certificate will not be the parent by whom the child is being raised and, with others not having the child in their care and yet retaining Parental Responsibility that they are unable or unwilling to exercise – i.e. the surrogate mother.

The rules are stringent and compulsory and strict adherence to the regulations is essential if a Parental Order is to be made. This does not make surrogacy an easy option, at least not under English law.

Internationally, however, the practice is often far wider and more relaxed but is full of pitfalls for anyone hoping to conceive a child in this way where they hope to live in the UK afterwards as intended parents using surrogacy abroad must still meet the UK requirements if they wish to return and live here with their child. There is a shortage of willing surrogates in the UK, and many people do approach commercial organisations abroad to help them meet a surrogate.

It is important to explore the issues of immigration, entry clearance and citizenship as well as being sure of securing the legal status needed to care for the child as his or her parents under English law. The legal issues associated with international surrogacy are immensely complex, and it is very strongly recommended that anyone considering international surrogacy seeks specialist legal advice before going ahead.

So what of Daddy, Papa (Sir Elton and David) and Zachary, their son? Theirs was clearly an international surrogacy arrangement, not subject to the strict UK requirements. Zachary was born to an American surrogate in the US and it is likely that their status as parents in California has already been recognised automatically. Furthermore, it is believed many hundreds of thousands of pounds were exchanged in agreement for the surrogacy that would have been illegal in the UK.

Additionally, it was widely reported that they do not know which of them the child’s biological father is since they opted to both “contribute” to the conception through their surrogacy programme in America, which allowed them to mix their semen specimens; a process that is currently banned in the UK.

However if they wish to come to the UK and settle here with their son, the issues of immigration and securing legal status to care for him here will apply equally to them and will be of utmost importance.

The contents of this article are for the purposes of general awareness only. They do not purport to constitute legal or professional advice. The law may have changed since this article was published. Readers should not act on the basis of the information included and should take appropriate professional advice upon their own particular circumstances.