Navigating the 'legal minefield' – considerations for surrogacy in the UK

Surrogacy agreements are unenforceable in the UK. As such, those entering into such agreements rely on one another to honour the terms of the agreement. It is also illegal for a third party (including a solicitor) to negotiate a surrogacy agreement for any remuneration.

Notwithstanding that such agreements are unenforceable, those parties entering into surrogacy arrangements are still advised to consider entering into one, as it prompts all parties involved to consider all the important elements and eventualities arising from the arrangement.

The Law Commission consultation paper notes that a written agreement between the surrogate and the intended parents should be a key element of its new proposal in this area however, the agreement itself would not confer legal parenthood.

The woman who gives birth to the child is the legal mother at birth, whether or not she has a genetic connection to the child. A child cannot have more than two legal parents and the identity of the second legal parent depends upon the specific facts.

Below are the factual scenarios from the BBC documentary:

• Surrogate (single mother) and two male intended parents with one intended parent using their sperm and surrogate's egg: The surrogate and the intended father who provided the sperm will be the legal parents. The other intended father is not a legal parent at birth.
• Surrogate (mother in a co-habiting relationship) and married heterosexual intended parent, with intended parent's egg and sperm used: The surrogate and the intended father will be the legal parents. The intended mother is not a legal parent at birth.
• Surrogate (married) and single intended parent who used his sperm and a donor egg: The surrogate and surrogate's husband (if he consented to the surrogacy) will be the legal parents. The intended parent is not the legal father at birth.
• Surrogate (married) and married heterosexual intended parents who used their sperm and surrogate's egg: The surrogate and surrogate's husband (if he consented to the surrogacy) will be the legal parents. The intended parents are not the legal parents at birth.

The surrogate will be the legal mother of the child at birth whether she uses her own egg ('traditional surrogacy') or whether IVF is used to conceive the child and the surrogate is not genetically related to the child ('gestational surrogacy') until such time as a Parental Order is made.

In the case of a traditional surrogacy arrangement, the surrogate may want to be more involved in the child's future life as they will have a genetic link to the child. This is something that should be discussed between the parties at the outset of an arrangement to ensure that all parties' future intentions are aligned. Once the surrogate is no longer the legal parent to the child (following the making of a Parental Order), she cannot legally require involvement in the child's future.

A Parental Order is required to transfer legal parenthood and in turn parental responsibility to the intended parents, terminating the surrogate's legal parenthood (and that of their spouse or civil partner, if applicable).

It is only possible for a Parental Order application to be made following the child's birth and then within a six-month period following birth (although the courts have frequently made orders beyond this six-month limit). The court cannot make a Parental Order until six weeks after the birth of the child as the law prescribes that the surrogate can only validly consent to an order being made after this period has elapsed.

When making the Parental Order the court's paramount consideration is the child's welfare. The following are requirements for the making of a Parental Order:

• The applicant(s) must be at least 18 years old;
• At least one applicant must have a genetic link to the child (either the sperm or egg donor);
• The surrogate must be a woman and must consent to the Parental Order being made;
• At least one of the intended parents must be UK domiciled;
• The surrogate must not have received money or other benefits other than for their "reasonable expenses"; and
• The child's home must be with the intended parents (the courts have interpreted this requirement to include where the child moves between the homes of separated parents).

The Law Commission has proposed pursuant to a new 'pathway' that intended parents should obtain legal parenthood and parental responsibility automatically upon the child's birth, subject to the surrogate's right to object during a defined period. However, the new pathway would only apply in cases of domestic and not international surrogacy arrangements.

It is possible for a surrogate to change her mind following the birth and refuse to hand over the child to the intended parents (even if she has no genetic link to the child). If the surrogate then also refuses to consent to a Parental Order, this would preclude the intended parents from obtaining a Parental Order and the surrogate and her spouse or civil partner, if applicable, would therefore remain the child's legal parents.

The Law Commission's proposals include the right of the surrogate to object (within a defined period after birth) to the intended parents becoming the legal parents of the child 'to ensure that the rights of the surrogate are fully respected and protected'.

However, in the event of such a dispute the Family Court would have the ability to intervene in order to determine the child's living arrangements and in doing so the child's welfare will be the court's paramount consideration.

The legal parents have 'parental responsibility' (PR) for the child, which is a legal concept that confers legal rights and responsibilities on a parent in respect of a child. The legal mother (the surrogate) automatically has PR, as will her husband / civil partner. The legal father will also have PR provided he is named on the child's birth certificate however, as noted above, they may not necessarily be the intended parents.

Once a Parental Order has been made, the intended parents will automatically acquire legal parenthood. However, as intended parents must wait for a period of time prior to making the application for a Parental Order there is a period of time during which they do not have PR. Therefore, there may be some circumstances in which an application to the Family Court for a "lives with" Order may be required to confer PR at an earlier stage.

The surrogate will always be the legal mother, but the question as to who is the second legal parent will depend upon the facts of those entering into the surrogacy arrangement, which can include whether conception takes place via home insemination or in a licensed clinic. If the surrogate's eggs are not being used (i.e. gestational surrogacy) IVF will be necessary and this cannot be done at home and will take place in a clinic.

If the surrogate is married, her spouse / civil partner is the second legal parent unless it is shown they did not consent to the surrogate's treatment. This is irrespective of where conception takes place.

If the surrogate is unmarried and conception is via home insemination, the second legal parent is the genetic father (which could be one of the intended father(s) or a sperm donor). If the surrogate is unmarried and conception is in a licensed clinic, it may be possible to nominate the identity of the second legal parent, subject to certain specific criteria being met.

There is also no requirement in a home insemination arrangement for any form of medical screening as provided in a UK licensed clinic. This is important in order to minimise the risk of diseases and genetic disorders being transmitted to the surrogate or the child.

This would depend on whether one of the intended parents is a legal parent. If they are a legal parent, they have an obligation to care for the child and have financial responsibility for them. If neither intended parent is a legal parent, there is no such obligation and the surrogate must rely on the goodwill of the intended parents to honour their original agreement.

Whilst this is unlikely to occur as the intended parents will have entered into the surrogacy arrangement with the intention of having a child, it flags the importance of all parties establishing each other's intentions at the outset of their surrogacy journey.

The parties should discuss all eventualities, including whether the intended parents will care for the child regardless of whether they separate, or if one of them passes away. Intended parents should also ensure there is a Will in place to deal with who cares for the child in the event of their death during the child's minority.

Surrogacy can be a physically and emotionally draining process on the surrogate and may impact their personal relationships, family dynamics and ability to return to work. The welfare of the surrogate should be a primary consideration throughout the surrogacy journey to ensure it progresses smoothly for all parties.

Checks to ensure the welfare of the surrogate are more likely to be in place if a more formal surrogacy arrangement is pursued through a clinic. Home insemination surrogacies may have no such checks in place if the parties have not considered them

The Law Commission proposals include built-in, pre-conception safeguards to protect the interests of all parties to a surrogacy arrangement, including matching them through a regulated surrogacy organisation or licensed clinic, medical checks and enhanced criminal records check of the surrogate, her spouse or partner and the intended parents.

Whilst it is not illegal for intended parents to pay a UK surrogate more than their "reasonable expenses", as detailed above one of the criteria for obtaining a Parental Order is that the intended parents should not pay the surrogate in excess of their "reasonable expenses" and the Court is required to authorise any payments which are in excess this.