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What are our surrogacy laws?

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Surrogacy is back in the news, with the case of the Australian couple refusing to take a boy who was born with Down’s syndrome making headlines across the world. The case has led to calls for changes in the law on surrogacy. But just what are our surrogacy laws?

Before I begin, just a quick explanation as to what exactly surrogacy is. Surrogacy is an arrangement whereby another woman (the ‘surrogate mother’) agrees to carry a baby for an infertile couple (the ‘intended parents’). This can take one of two forms: either the surrogate mother uses her own egg fertilised with the intended father’s sperm, or she carries the intended parents’ genetic child conceived through IVF.

The first thing to say about the law is that, contrary to what some believe, surrogacy is legal in this country. However, surrogacy contracts between the intended parents and the surrogate mother are not enforceable under our law. This means that if the surrogate mother were to change her mind, there is nothing that the intended parents can do to force her to keep to the agreement. By the same token, there is nothing that the surrogate mother can do to force the intended parents to take the child, as in the case in the news referred to above.

Further, it is illegal to pay a surrogate mother in the UK, save for her reasonable expenses, such as travel expenses, medical expenses, loss of earnings and childcare expenses for looking after the surrogate’s own children.

When the child is born the surrogate mother is treated as the child’s legal mother. This means that she has the right to keep the child, even if she and the child are not genetically related.

If the surrogate mother is married or in a civil partnership, then her husband or civil partner will be treated as the child’s legal father, unless they did not give their permission for the surrogacy arrangement.

How do the intended parents obtain legal rights for the child? They apply for a ‘parental order’ under section 54 of the Human Fertilisation and Embryology Act 2008. Once such an order is made the intended parents are treated in law as the parents of the child. Note, however, that at least one of the intended parents must be genetically related to the child, that the intended parents must be husband and wife, civil partners or living together in “an enduring family relationship”, and that they must have the child living with them. A single person cannot get a parental order – the only way that they or unrelated ‘intended parents’ can become the child’s legal parent is through adoption.

The application for a parental order must be made within six months of the child’s birth. The surrogate mother and anyone else who is a parent of the child (including, as mentioned above, her husband) must give their free and unconditional consent to the making of the order. In the recent case of Re D (A Child) the court had to determine whether or not a surrogate mother was married at the relevant time, as only then would her husband be the child’s legal father. Note that the surrogate mother’s consent must be given at least six weeks after the child’s birth. Lastly, as indicated above, the court must be satisfied that no money has changed hands between the intended parents and the surrogate mother, save for reasonable expenses, before it makes the parental order.

The above is, of course, a brief outline of the law. Surrogacy laws are complex and often deeply intertwined with issues of morality, as the Australian case demonstrates (I have given considerable thought to that case myself, and don’t know where the answer lies). There is also commonly an international element that I do not deal with above. Certainly, any couple considering embarking upon a surrogacy arrangement should first seek expert legal advice.

John Bolch often wonders how he ever became a family lawyer. He no longer practises, but has instead earned a reputation as one of the UK's best-known family law bloggers.

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