Surrogacy Law – in the UK and abroad

Surrogacy has become increasingly common in recent years and though it is hard to establish statistics there are reportedly 1,500 children born to UK parents in overseas jurisdictions each year.

If a surrogate receives compensation beyond reimbursement of medical and other reasonable expenses, the arrangement is considered to be commercial rather than altruistic. Some countries, including France, Germany, Italy, Spain, Portugal and Bulgaria, prohibit all forms of surrogacy. In others, including the UK, Ireland, Denmark and Belgium commercial surrogacy is prohibited whereas altruistic surrogacy is allowed.

Commercial surrogacy is carefully regulated and controlled in many US states while in the remainder it does not have legal recognition. Perhaps most importantly for prospective parents, agreements reached with the surrogate pre-birth are enforceable in those states where it is permitted. In terms of dealing with the issue of parentage, legal provisions can vary from state to state, and will either proceed by way of a pre-birth order or post-birth parentage or adoption orders.

There are no international conventions, treaties or reciprocal arrangements currently in force which govern surrogacy, so any orders made abroad are not recognised in the UK. Under UK law the surrogate, and her husband if she is married, will remain the child’s legal parents despite the intentions of the parties and any US order to the contrary. As such, parents must still apply separately for a parental order in the UK court.

The UK’s position on surrogacy is regulated by the Human Fertilization and Embryology Act 2008. There are many problematic aspects to the requirements of this statute including, a time limit of 6 months in making an application for a Parental Order, the requirement that one or more of the parents is domiciled in the UK, and the currently nebulous definition of what amounts to reasonably incurred expenses.

In addition, surrogacy cases can sometimes encounter difficulties with legal provisions regarding adoption. For example, the US states of Iowa and Minnesota deal with the issue of parentage in surrogacy cases by way of post-birth parentage or adoption orders. However, parents then looking to make an application for a parental order in the UK have found that they are technically in breach of UK law, it being a criminal offence for a person who is habitually resident in the UK to have adopted a child overseas without complying with UK regulations.

As a result, applicants need to seek legal advice in order to guide them through the technical maze of surrogacy law.

Current news: the case of H v S

A story which has been heavily featured in the press this month is H v S (Surrogacy Agreement). This was a traditional, rather than gestational, surrogacy in that the surrogate, S, was also the biological mother. H, the biological father, was in a same-sex relationship with a long-term partner, B. H and S had been friends for many years; H claimed that S had agreed to be a surrogate and that H and B would co-parent the child, with S continuing to play a role. S denied the existence of a surrogacy agreement and claimed that she had entered into an agreement with H, to the exclusion of B, that H would be in effect a sperm donor and that she would take on the role of the child’s parent and primary carer.

The court considered applications and cross-applications for residence and contact, now known as Child Arrangement Orders. As such, the court’s primary consideration was the welfare of the child concerned. This meant that the court was obliged to consider and apply what is known as the welfare checklist, set out in section 1 of the Children’s Act 1989. The applicable law was that of any private family dispute, rather than surrogacy law, and the judge specifically stated:

“It is not the function of this court to decide on the nature of the agreement between H, B and S and then either enforce it or put it in place. It is the function of the court to decide what best serves the interests and welfare of this child throughout her childhood”.

The child was born in January 2014 and the final hearing took place over 6 days in January and February 2015, with multiple interim hearings in the intervening period, the involvement of CAFCASS and the appointment of a guardian to represent the child in the proceedings. Finally, the court ordered that the child should reside with H and B, both of whom had been granted parental responsibility, and to have contact with S.

The case highlights the extremely difficult consequences of the current legal framework regarding surrogacy in the UK. Legislation relating to surrogacy did not apply as S did not consent to the making of a Parental Order, and denied that she had agreed to be a surrogate. While S’s actions in relation to the disputed agreement were considered the court was obliged to do so solely in terms of how this reflected on S’s ability to put the needs of her child first, and also in relation to the child’s welfare.

It proved to be simply fortunate that the terms of the final order coincided with the reality of the child’s conception and would accord with her identity and place within her family. Arguably, if S had conducted herself differently both in court and during the time following the birth, the final order may have resulted in the child living with her mother, having contact with her biological father and with no legally defined relationship with her father’s partner. The fundamental disparities between these scenarios are very stark.

Comment

It is becoming increasingly clear that the legal framework in relation to both domestic and international surrogacy arrangements is in need of reform. Doing so may strengthen, rather than weaken, the current law’s intention to protect the surrogate mother. Importantly, it will also ensure preservation of the child’s welfare by guaranteeing immediate identity rights and protection.

This guide is for general information and interest only and should not be relied upon as providing specific legal advice.  If you require any further information about the issues raised in this article please contact the author or call 0207 404 0606 and ask to speak to your usual Goodman Derrick contact.