Surrogacy is becoming increasingly common in the UK. The profile of surrogacy as a route to parenthood has been raised by celebrities including Cristiano Ronaldo, Elton John, Sarah Jessica Parker, Nicole Kidman, Kim Kardashian and Tom Daley, all of whom have had children born as a result of a surrogacy arrangement.
However, navigating the legalities of such arrangements remains complex and can have unforeseen circumstances. There are also a number of common myths and misconceptions concerning surrogacy in the UK. If advice is not sought at an early stage there can be serious unintended consequences for those intended parents entering into such arrangements.
"Surrogacy is illegal in the UK"
Surrogacy is not "illegal" in the UK. However, commercial surrogacy arrangements are prohibited in the UK and as such the law prevents commercial surrogacy and advertising for surrogates. This can make it difficult to locate a surrogate in the UK, other than on an altruistic basis and results in intended parents looking to travel abroad to countries such as the USA (specifically states such as California) where the regulatory framework surrounding surrogacy is less restrictive.
"If I have a child born via a surrogate, I will automatically be considered the child's legal parent"
The surrogate mother will automatically be the child's legal mother at birth, regardless of where in the world the child is born and regardless of whether or not the surrogate mother has any genetic link to the child. If the surrogate mother is married or in a civil partnership, her husband, wife or civil partner will automatically be the child's second legal parent. Therefore, in order for the intended parents to become the legal parents to a child born via a surrogate, it is necessary for a Parental Order to be applied for in the UK for which various conditions must be met as follows:-
- At least one of the intended parents must have provided the genetic material used to create the embryo. Therefore, if an embryo is created using a donor egg and sperm it would not be possible for a Parental Order application to be made.
- At the time the application is made the child must be living with the intended parents.
- At least one of the intended parents must be domiciled in the UK, Channel Islands or Isle of Man.
- No money or benefit must be given or received by the surrogate other than for reasonable expenses, unless the Court authorises such payment.
- The application must be made within 6 months from the birth of the child.
- The surrogate mother (and her husband, wife or civil partner as appropriate) must give free and unconditional agreement with a full understanding of the Order being made. That agreement must be obtained no earlier than six weeks after the birth of the child.
"If I travel abroad to a country where the laws covering surrogacy are less strict such as California, I will automatically be considered the child's legal parent"
In some jurisdictions, such as California, it is possible for the intended parents to obtain pre-birth Orders and therefore be recognised in that country as a child's legal parent prior to birth. However, it is not a simple case of travelling abroad and opting into a foreign system. Even if a surrogacy arrangement is entered into overseas where you are recognised as the child's legal parent, that will not be the case in the UK. In order to be recognised as a child's legal parent in the UK a Parental Order must be obtained. Furthermore, when entering into a surrogacy arrangement abroad there can be serious complications in relation to the child's nationality and immigration rights and status for which advice should be obtained.
"I am single and considering having a child via a surrogate but understand I cannot obtain a Parental Order to confer legal parenthood"
Whilst it was possible, effective from 2005, for single applicants to apply for Adoption Orders, the law only changed in order to allow single applicants to apply for Parental Orders effective from January 2019. The change to the law was long awaited. One of the conditions which must be met by intended parents applying for Parental Orders is that the application must be made six months from the birth of the child. There will be a significant number of single applicant parents who have had children born via surrogacy arrangements who are older than six months. The Remedial Order brought into force in January 2019 makes it possible for those single applicant parents to apply retroactively and still meet the criteria for an application being made within six months provided their application is made by 2 July 2019 (i.e. six months following the Remedial Order being brought into force).
"It is illegal to pay a surrogate more than reasonable expenses in the UK"
It is illegal in the UK for anyone to arrange surrogacy for profit. This does not apply, however, between surrogates and parents. Therefore, intended parents and surrogates can agree whatever arrangements they wish about payments without it being illegal. However, the difficulty in respect to payments arises following the child being born and at the time when the intended parents wish to apply for a Parental Order. One of the conditions for applying for a Parental Order is that no money or benefit must be given or received by a surrogate other than for expenses, unless the Court retrospectively authorises such a payment. Therefore, whilst there are no criminal sanctions in connection with payments in excess of reasonable expenses being made to surrogates, the potential sanction available to the Family Court is to deny the making of a Parental Order. In practice, if the Court considers payments to have been made which go beyond reasonable expenses, the Court must then have regard to the paramount consideration being the welfare of the child. Therefore, the Courts have dealt with cases where intended parents have overstepped the rules on the payment of reasonable expenses; however the Court has overlooked that requirement in circumstances in which it has considered the making of such an Order is justified based on a child's welfare. The approach of the Courts in those cases should not however, be considered as carte blanche for intended parents in making payments to surrogates beyond those considered as reasonable expenses - as each case will need to be considered by the Court on a case by case basis.
"I cannot apply for a Parental Order as more than 6 months have passed since my child was born via a surrogate"
The law provides that applications for Parental Orders must be made within 6 months from the date of birth of the child. However, there have been a number of cases when the six month time limit has been extended including, in one case by over 7 years. Whilst the Court will consider each case based on its circumstances, it may be possible to obtain a Parental Order at the Court's discretion after the 6 month time period from birth has elapsed. Notwithstanding this, wherever possible the application should be made within the 6-month time period from birth.
"I cannot obtain any rights or responsibilities in respect to my child born via a surrogate because the surrogate mother is refusing to provide consent to a Parental Order"
The surrogate (and her husband, wife or civil partner as appropriate) must give free and unconditional agreement, with full understanding as to the Parental Order being made. The Court has only dispensed with the requirement for consent in limited cases where the surrogate (and her husband, wife or civil partner) cannot be located or are incapable of giving agreement. In those cases where the surrogate can be located and is capable of providing agreement, but refuses to do so, the Court will not overlook the requirement for consent as a pre-requisite for obtaining a Parental Order. In those circumstances, whilst it is not possible for the intended parents to obtain a Parental Order conferring legal parenthood, there are options for those parents to make applications to the Court for:
- Orders regulating the living arrangements for the surrogate child; and
- In order to confer parental responsibility. Parental responsibility is a concept separate from legal parenthood. The term legal parent refers to an individual's legal status in respect to child relevant in relation to inheritance entitlement, nationality and financial responsibility; a child can only have two legal parents. Parental responsibility gives an individual the authority to make decisions about a child's care, including decisions in respect to matters such as medical care, education and religion.
However, those applications detailed above cannot confer legal parenthood and therefore should only be considered as a last resort if there are no other available options for obtaining a Parental Order.
Emma Willing is a Managing Associate in the Family Law department at Mishcon de Reya LLP.