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A reminder of why surrogacy law in the UK needs updating by Bethan Carr

I was delighted to hear this week that US TV personality, Andy Cohen has had a little boy with the assistance of a surrogate in the United States.

This is wonderful news but does highlight the stark differences between surrogacy law in the UK and in the US.

Surrogacy in the US

Andy Cohen will have been recognised as the legal parent of his son from birth; in the first instance, he will have signed a surrogacy agreement with his surrogate before embryo transfer took place.

They would both have had US attorneys representing them, and the agreement will have set out their respective legal positions, each parties rights, roles and responsibilities both during and after the pregnancy.

He will then have gone through a largely administrative court process and been granted either a pre or a post-birth court order. The effect of these birth orders is clarity: they would have assigned parentage to Andy Cohen and removed any rights/obligations the surrogate has in relation to the child she is carrying.

The result of all this being that when Andy’s surrogate gave birth, everyone will have been aware and fully understanding of the fact that Andy was the legal father of his son, and he would have received a birth certificate with his sole name on.

Surrogacy in the UK

By comparison, if Andy Cohen had been a UK intended parent and chosen to go through surrogacy in the UK, he would more than likely have had a much longer wait to find a surrogate. There is a huge shortage of surrogates in the UK and it can take some intended parents years to find someone who is willing and able to help them.

Once Andy had found a surrogate, he would have had the option to enter into a surrogacy agreement, however, unlike in the US, this is not a legally binding document. They are not enforceable, and it is also illegal for a third party, like a solicitor, to negotiate a surrogacy agreement for payment.

This means that surrogacy agreements in the UK are largely based on trust, and leaves many intended parents and surrogates feeling worried about a future disagreement or issues further down the line.

There is then the tricky issue of the birth in the UK; my advice to intended parents is to always have an early conversation with your surrogate’s maternity hospital to ensure they are aware of the background and will be able to facilitate you attending the birth with your surrogate. However, this is not always possible, and hospitals can find it hard to know how to deal with surrogate births as they are often unsure of the legalities which surround this.

The UK legal position is that at birth, the surrogate will be recognised as the legal mother and if she is married, her spouse will be recognised as the child’s second legal parent. If Andy’s baby had been born to a UK surrogate, and his surrogate was married, he would not have been recognised as the legal father immediately from birth and may have had difficulty leaving the hospital with his child. There have been previous stories in the news about hospitals requiring intended parents and surrogates to do a ‘handover’ in the car park as opposed to on hospital property, which can be very distressing and disappointing for all those involved.

Andy would then have been faced with the prospect of applying for a parental order to be recognised as his son’s legal father. While this is not an overly complex process, it is very different to the administrative process we see in the US. It also can take some time, with 6 to 12 months from application to final order not being uncommon. This means that Andy would be left in a limbo period, in which he is caring for his biological son, but with no legal relationship between the two of them, potentially causing difficulties if any medical treatment is required.

Until recently too, he would not have even been able to apply for a parental order, with the law only changing to allow single parents in the UK to apply from early January 2019.

The legal system in the UK needs to change, and I hope that we will soon see a system which offers more protection and clarity to both intended parents and surrogates.

Considering surrogacy? Get in touch

In the meantime, our surrogacy team at Stowe Family Law would be very happy to assist UK intended parents considering surrogacy either in the UK or overseas. We have a wealth of experience and would be delighted to support you with your journey.

You can find out more information on our surrogacy service page, which can be found here or alternatively, please do contact me at [email protected] or call me on 01962 850 408.

Bethan advises on all aspects of family law and is a specialist in domestic and international surrogacy arrangements. Following her training in a niche fertility law firm, she has experience of fertility cases involving legal parentage and donor conception.

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