NEWS… BUT NOT AS YOU KNOW IT
You may have heard of people, both celebrity and civilian, using surrogate mothers to carry their baby. This can be for health reasons that mean the mother-to-be cannot carry a baby to term, it could be a gay or trans couple who want to have a baby or it could be a matter of personal choice, among other reasons.
Kim Kardashian and Kanye famously used a surrogate for their third child, daughter Chicago, born in January 2018. Kim made no secret of the fact they used a surrogate, saying she and Kanye were ‘incredibly grateful to our surrogate who made our dreams come true with the greatest gift one could give’. They used a different surrogate for son Psalm in May 2019. They used a surrogate because Kim had suffered with pre-eclampsia in an earlier pregnancy, which put both her and the baby at risk.
Kim and Kanye used surrogates in the US, where the laws are quite different to the surrogacy laws in the UK. In the US, it is common to pay the surrogate a fee and to have a contract from the outset, recognised by State law, that gives parental rights to the paying parents.
Agencies are usually used to handle all the interactions and the medical and financial matters. It’s a highly controlled industry. Surrogacy in the US can cost upwards of £100k per baby.
In the UK, the laws are different. It is generally considered unlawful to pay a surrogate a fee and it is illegal to use a paid third party to arrange a surrogacy.
In the UK, unless a court rules otherwise, only expenses and medical bills can be paid. This will include travel to and from appointments, medication, maternity clothes.
It means there is no profit to be made for UK surrogates.
The second crucial point about UK surrogacy is that under UK law, the baby born to the surrogate – even if it was an embryo created using the intended parents’ eggs and sperm – legally belongs to the surrogate mother until she can legally sign a parental order at 6 weeks and no later than 6 months.
That means the surrogate mother is the legal parent until they willingly sign over the baby to the parents. In certain cases (more on this below), the surrogate’s partner is considered to be the child’s second parent.
This can be a tense time for the intended parents and, while the majority of surrogacy agreements go smoothly, there are incidents – such as the case of these two dads – where the surrogate mother changes her mind after the birth and wants to keep the baby or asks for more money outside of the original agreement in order to hand it over. This leads to a legal battle where the court ultimately decides where the baby is best off. No contract in the UK holds water here and the judge has the final word.
UK Family Law firm Goodman Ray Solicitors have much experience working on surrogacy cases in the UK. Here they spell out the UK law for surrogacy to clear up any doubt around the arrangements.
Surrogacy is an arrangement whereby an unborn child is carried by a woman – the “surrogate mother” – and handed over at birth to other people who it is intended will be the child’s parents. The arrangement must be made before the woman begins to carry the child.
Couples who wish to have a child but who are unable to carry the child themselves – for example, because a woman is physically unable to carry the child, or it would be dangerous for her to do so, or it is a male homosexual couple – may consider surrogacy as a route to creating their family.
The woman who carries the baby is called the surrogate mother. The couple who commission the surrogacy are referred to as the “intended parents”.
Surrogacy arrangements are not illegal under UK law – but there are various activities connected with them that are illegal.
It is a criminal offence for a third party to be involved in facilitating or negotiating a surrogacy arrangement, including putting information together to be used in making a surrogacy agreement, if payment is received, or is expected to be received, for doing so. “Payment” can be in money or money’s worth.
The law extends to people acting for or on behalf of corporate bodies and other organisations. The law means, for example, that a solicitor in the UK cannot advise a client in relation to any aspect of a surrogacy arrangements aspect of, a surrogacy arrangement. There is an exemption in the legislation for non-profit making organisations to be involved in surrogacy arrangements.
It is also a criminal offence to advertise that you are:
• willing to enter into a surrogacy arrangement;
• looking for a woman to act as a surrogate mother;
• looking for people who want a surrogate mother to carry a child;
• are able to negotiate or facilitate a surrogacy arrangement.
The law applies to adverts published or placed in the UK – in print, online or by any electronic means (e.g. TV or radio).
It is not a criminal offence for payments to be made to a surrogate. However, it is important to understand that any payment made to or for the benefit of the surrogate will be scrutinised by the court when the intended parents apply for a “parental order”.
The UK position differs significantly from that in other countries such as the US, where commercial surrogacy is legal. The US has a very established surrogacy market. Surrogacy law in the US is a matter of State rather than Federal law. The question of international surrogacy and the courts in the UK will be dealt with in a later article.
Surrogacy arrangements are not enforceable under UK law. This means that if one of the parties to the arrangement changes their mind, or the circumstances change, the arrangement is not legally binding. It does not matter whether the arrangement was set out in writing or not. If this happens, who cares for the child will be something that the court will have to decide and the court will not enforce the agreement, but make a decision based on what is best for the child.
There are two types of surrogacy: “host” (or “gestational”) surrogacy and “traditional” surrogacy.
“Host surrogacy” is when the surrogate’s eggs are not used to conceive the child. An embryo is created and transferred to the surrogate. The embryo may be created either from the egg and sperm of the intended parents (so the child is 100% genetically related to the intended parents) or it may be created from one of the intended parent’s egg/sperm, together with donor sperm or a donor egg.
“Traditional surrogacy” is when the surrogate’s egg is used to conceive the child. In this situation the sperm should be that of the intended father, rather than donor sperm. This is because one of the intended parents must be biologically related to the child in order to obtain a parental order at the end of the process – see below.
It is really important to understand who the legal parents are where the child is born by surrogacy. The law in the UK relating to legal parenthood applies whether the surrogate gave birth to the child in the UK or abroad.
The law relating to legal parenthood in surrogacy is complicated. Specialist advice should be taken on these issues by anyone who intends to become a surrogate, is married to or in a civil partnership with someone who intends to become a surrogate, or intended parents.
The surrogate will always be the child’s legal mother – regardless of whether her eggs are used to conceive the child or not.
If the surrogate is married or in a civil partnership at the time she starts to carry the child, her spouse/civil partner will be the child’s second parent; unless it can be shown that that person did not consent to the surrogacy arrangement.
If the surrogate is not married or in a civil partnership at the time she starts to carry the child, there are a number of possibilities as to who the child’s second parent will be. The biological father will be the legal father of the child, unless:
• the intended parents are using donor sperm and the treatment is provided through a licensed fertility clinic; and
• the intended parents have signed “parenthood” forms giving written consent to the non-biological parent being treated as the child’s second legal parent.
This means that if a child is conceived using donor sperm other than through a licensed fertility clinic, the sperm donor will be the legal father.
If the child is born in the UK, the legal mother (i.e. the surrogate) is responsible for registering the child’s birth and she will be registered as the mother.
If she is married, her spouse/civil partner will generally be registered as the second legal parent – although the other legal parent (e.g. the intended father or second female parent) can be registered as the second parent.
If she is not married or in a civil partnership, the other legal parent (e.g. the intended father or second female parent) can be registered as the second parent on the birth certificate.
It is clear from the previous section that the child’s intended parents – or its mother at least – will not be its legal parents when it is born.
It is important for the intended parents of a child to ensure they become its legal parents. If the surrogate (and her spouse if relevant) remain the legal parent(s) of the child, this can/will have implications for the following:
• inheritance rights;
• life insurance;
• important decisions that need to be made regarding the child’s welfare (for example medical issues, obtaining a passport for a child)
• issues arising if the intended parents separate in the future;
• issues arising as a result of the surrogate (and her spouse/civil partner) having to remain involved in decisions due to being legally related to the child.
Therefore, once a child is born and handed over to the intended parents, they should take steps to regularise the legal position so that they become the legal parents of the child.
The intended parents will need to apply to the Court for a “parental order”. This order transfers legal parenthood and parental responsibility from the surrogate (and her spouse/civil partner if relevant) to the intended parents.
In order to make a parental order the High Court has to be satisfied that the following conditions have been met:
1. The child has been carried by a surrogate, as a result of an embryo or eggs and sperm being transferred to her, or her artificial insemination;
2. At least one of the couple is the child’s biological parent;
3. The application is made by a couple; a parental order cannot under current law be made by a single intended parent alone, though the Government has indicated that it proposes to change this;
4. The child has its home with the couple, who are married, in a civil partnership or living in an “enduring family relationship”. Recent case law has confirmed that the intended parents do not need to be in an intimate, romantic relationship with each other for this condition to be satisfied;
5. The application is made within 6 months of the child’s birth, though the court has in exceptional circumstances extended this;
6. At least one person in the couple is domiciled in the UK;
7. Each applicant is at least 18 years old;
8. The surrogate and any other legal parent of the child has given their unconditional consent to the making of the order. The court must be satisfied that the consent is fully informed and has been given freely. The surrogate mother cannot give her consent until at least 6 weeks after the birth of the child;
9. No payment, other than reasonable expenses, has been made or received by the couple in relation to:
• the surrogacy arrangement;
• consent being given by the surrogate and her spouse;
• the making of the parental order.
unless such payment is authorised by the Court retrospectively.
The Court has in the past authorised payments in excess of reasonable expenses, for example in relation to commercial surrogacy that took place abroad where the surrogate has been paid a fee; however, it must not be assumed that the Court will always do so. The Court will scrutinise any payments carefully and will make a decision on a case by case basis.
If these conditions are not met, the parental order cannot be made.
Specialist legal advice should always be taken in relation to applying for a parental order, both in terms of the conditions that must be met and the application process. The law is evolving in this area and there are nuances and complexities in the interpretation of the legislation; a specialist solicitor will be able to advise you and guide you through these issues.
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