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Government urges caution with foreign surrogacy arrangements

While some people sail through their lives entirely untroubled by a lack of offspring, for others it is a source of pain. Whether they left it too late in their lives or cannot have children for medical reasons, the anguish can be very real. Same sex couples may also have a very real desire to be parents.

For the increasing numbers who find themselves facing such dilemmas, surrogacy can seem an attractive option. It’s a chance, after all, to bring your own child into the world – a child, moreover, to whom at least one half of the couple will usually have a biological connection.

But many such couples are soon frustrated by restrictions placed on surrogacy by English law. Under the Surrogacy Arrangements Act 1985, commercial arrangements are illegal. Only ‘reasonable’ expenses can be paid. This can leave couples seeking surrogacy dependent on the goodwill of friends or acquaintances, and let’s face it, being a surrogate parent is more than a casual favour. In addition, surrogacy arrangements are not legally enforceable under UK law, so the birth mother can change her mind with impunity.

And following any birth, she will be the baby’s legal parent. And If she’s married, her husband will be the other legal parent.

Unless and until the commissioning couple obtains a parental order transferring the legal status of parent to them. Both the surrogate mother and her husband if she is married must consent for a parental order to be granted. A parental order must be applied for within six months of the birth.

Faced by such problems, many couples turn to foreign countries with a more liberal approach to surrogacy – for example, the US and India. They look for the best clinics they can afford in such countries, and if everything turns out well, fly over to bring the new baby home with them.

The government, it seems, is now starting to take notice. The Foreign and Commonwealth Office has just published a guide “for British nationals who are considering entering into surrogacy arrangements in foreign countries.”

Surrogacy Overseas is a detailed fact sheet setting out the issues surrounding the foreign surrogacy process and urging couples who plan to embark on this to ensure that they are fully prepared for what lies ahead. The guidance highlights the fact that:

  • Returning to the UK with the new child or children can be a complex process requiring several months to complete.
  • The necessary travel documents can take up to six months to obtain and many countries have special visa requirements for couples seeking surrogacy.
  • There may be restrictions on surrogacy even in those countries where it is legal – it may, for example, be available only to married, opposite sex couples.
  • When commissioning couples do return to the UK with the surrogate child (or children), they will again need to obtain a parental order in the courts before they are considered the legal parents.

FCO Children’s Policy Advisor Daisy Organ said:

“Many couples are choosing to enter into surrogacy arrangements overseas to build and grow their family. The legal processes around international surrogacy are complicated and the procedure for getting passports and confirming nationality for the child can be complex and take a long time. We want to help inform prospective parents about what to expect right from the outset – so that they are prepared, get the right advice and they don’t run into unexpected difficulties.”

This all sounds like eminently sensible advice, although how much notice eager parents-to-be will take remains to be seen. Having a child via a surrogacy arrangement is just as intense and emotional an experience as a conventional birth. All the more vital then, to ensure you are properly prepared and ready for every eventuality.

It’s a minefield, and an ever evolving one at that, and any couple thinking of it whether here or abroad should take informed legal advice beforehand.

The blog team at Stowe is a group of writers based across our family law offices who share their advice on the wellbeing and emotional aspects of divorce or separation from personal experience. As well as pieces from our family law solicitors, guest contributors also regularly contribute to share their knowledge.

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