Surrogacy, who needs a lawyer and why?
Using surrogacy to build a family is becoming more common and is, of course, legal in the UK. Those engaging in surrogacy here in the UK are free to make arrangements between themselves, but sadly this does sometimes go wrong and without clarity, or a legal document or clinic intervention, it can become complex. There are specific rules and processes that parties involved in surrogacy arrangements must be aware of and strictly adhere to.
Anyone taking their first steps on the surrogacy journey is encouraged to do as much research as possible at the outset, including meeting with a reputable advisor. There are many moving parts and it can seem daunting not knowing where to start and who to trust. The dangers of misinformation or following advice that is not tailored to your specific situation could cause problems down the line.
Early legal advice not only prevents mistakes from being made but also puts people in a much better position to deal with some of the unforeseen issues that can arise in surrogacy, whether they are heterosexual couples, same sex couples or single individuals.
Who needs advice?
All parties involved in the arrangement are advised to seek legal advice, both intended parent(s) and the surrogate.
The surrogate, and their partner if they have one, should seek their own legal advice independently of the intended parents; this is a pre-requisite if using a fertility clinic here in the UK.
The intended parents likewise should consult a UK surrogacy lawyer, even if they are having an arrangement overseas and have a lawyer in that jurisdiction.
Why do you need legal advice?
Obtaining general advice about the law, the process and Parental Order requirements, before entering into any surrogacy arrangement in the UK or overseas, helps to ensure everyone understands the legal context and what’s involved.
Surrogacy contracts are not legally enforceable in the UK (unlike in the USA, for example). UK solicitors cannot arrange, negotiate or advise on a surrogacy contract and it is against the law for any third party to do so for payment. Nonetheless, it is still strongly advisable to have a written agreement. This not only helps all parties understand and agree the terms governing their relationship, but if things break down it is a guide for the court as to what was intended.
It will be the responsibility of the intended parents, post-birth, to obtain a Parental Order, having obtained the surrogate’s consent to acquire full legal parental rights. This is where a solicitor can assist formally.
In the UK, the legal mother is the woman who gives birth to a child, regardless of any genetic link. If the surrogate is married or in a civil partnership, their partner will be the other legal parent until consent is given. A Parental Order is the process by which intended parents become the legal parents of a child born through surrogacy. In order to transfer legal parenthood to the intended parents, an application must be made to the family courts to obtain a Parental Order. The Parental Order permits a new birth certificate to be issued in the name of the intended parents.
There are certain requirements for making a Parental Order and intended parents must check that they can meet all the eligibility criteria before proceeding. Parental Orders can only be made post-birth and applications have a specific timeframe; sometimes intended parents realise far too late - when the surrogate is already pregnant or even after their child is born - that they do not meet the eligibility criteria, or apply for the order out of time. While it is possible to make alternative legal arrangements for the child, it is not a desirable situation to be in and can often be costly and stressful.
Why do you need a Parental Order? Without one, a legal relationship between the intended parents (especially a non-genetically linked parent) and their child does not exist. Parents could find themselves unable to make major decisions on behalf of their child, such as for medical treatment or if the genetic parent dies - in which case the other parent (if there is one) has no legal status. Obtaining a Parental Order is therefore vital for the security of the family and, even more so, for the child. The effects of not making an application for, or not being granted, a Parental Order can follow a child throughout their life and can be far-reaching, such as complications obtaining a British passport, issues around inheritance rights or a non-genetic parent having to apply to adopt their child.
It is not uncommon for individuals to seek surrogacy arrangements abroad; however, international surrogacy involves unique, cross-border issues of family law, immigration and nationality. There is a heightened need for bespoke legal advice in this situation and UK lawyers will need to work closely with both lawyers and clinics overseas to ensure harmony.
In the UK, regardless of what arrangements have been made abroad, the surrogate is still considered the legal mother. A Parental Order will still need to be applied for, post-birth, in the UK if the intention is to reside here as a family.
Surrogacy arrangements can work well and the court process is usually straightforward. However, the current legal framework in the UK remains an altruistic model, reliant on trust on both sides and evidencing reasonable expenses only, which doesn’t automatically align with other jurisdictional arrangements. There may be issues if the parents separate or one passes away, if the surrogate or intended parents change their minds or if a surrogate demands more than reasonable expenses.
Nationality and applications for British passports will have to be considered when engaging in international surrogacy and again, this advice should be taken in the early stages to ensure you are prepared before and after birth.
On a practical level, all parties should consider having their wills updated and obtain insurance to fully protect both the surrogate and the child during the arrangement.
Written by the Family Law team at A City Law Firm - Spring 2020