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Surrogacy, a global lockdown and the law

Understanding surrogacy law: In 2018 we celebrated the first National Surrogacy week which took place between the 1st and 7th August. You may have read our article here. 

Last year,  we saw the second year of celebration between 5th and 11th August, which was another great week of raising the profile of surrogacy and the joy it brings to so many people’s lives. 

So, I put a note in my diary to ensure that I posted about it this year, in 2020 and much to my surprise, there was no national week this year. 

I wondered why… 

My first thought was COVID-19; however, the HFEA (Human Fertilisation and Embryology Authority) announced that clinics could apply to reopen from 11 May, if they ensured the safety and protection of staff and patients, so I was surprised it did not go ahead.

Maybe it was felt it would be insensitive to those who had struggled during the pandemic with surrogacy whether it was a stop to treatment, being stranded in another country with their surrogate child or being unable to travel to collect their child. I have heard and read some awful stories about the impact of lockdown on surrogacy. 

On the positive side, the majority of clinics have reopened, international borders are opening, passports are being issued, and surrogacy cases are progressing through the court (albeit slowly).

Surrogacy law can be complicated and time-consuming (global pandemic aside) and I along with my colleague, Solicitor Cheryl Grace and Barrister, Melissa Elsworth from 1GC were invited to a surrogacy clinic recently to assist with training their staff on the law.

Here is an overview of what we discussed. 

Understanding surrogacy law

In English law, the woman who gives birth to a child is the legal mother, and if she is married, her spouse is recognised as the child’s second legal parent.

This law has a direct impact on surrogacy in that the intended parents (who may also be the biological parents) are not recognised as their child’s legal parents from birth.

To become the legal parents, once the surrogate mother has provided her formal consent, the couple (or single person) can make a court application for a Parental Order.

What is a parental order? 

A parental order will remove the status of the surrogate and her spouse (if applicable), and reassign legal parenthood and parental responsibility to the intended parents.

How do I apply for a parental order?

To obtain a parental order, you need to make an application to the court once your baby has been born by completing the Form C51.

Who can apply for a parental order?

You can make an application for a parental order if you fulfil the following criteria: 

Single, a couple (either married, in a civil partnership or living together in an ‘enduring family relationship’).

One of both applicants must be domiciled* in the United Kingdom, Channel Islands, or the Isle of Man.

Your surrogate must freely, and with a full understanding of what is involved, agree unconditionally to the making of the parental order.

If she is married, her husband/wife will also need to consent. This is an absolute requirement, and if your surrogate and her spouse do not consent, then the court will not be able to make a parental order.

Obtaining their consent is, in practice, a paperwork exercise and one that must be handled carefully, particularly where you are going through surrogacy overseas and there may be a language barrier.

What if you cannot apply for a parental order?

The closest alternative to a parental order is an adoption order. However, the law and processes can be complicated as it was not designed with a surrogacy arrangement in mind. 

Other options are a child arrangements order or a special guardianship order. However, neither of these options will reassign parenthood and so won’t give intended parents a complete legal solution.

How can we help?

Our surrogacy team can help you understand surrogacy law, the options open to you and the different orders available.

Surrogacy law can potentially leave both parties in a vulnerable and complicated position. However, if you seek legal advice early, you can ensure that you fully understand the process, are prepared and obtain /submit the right documentation.  

Get in touch

If you are therefore a clinic or an individual/couple thinking of embarking on a surrogacy journey and require further information about understanding surrogacy law,  please do contact our Client Care Team to speak to one of our specialist family lawyers here. 

Sarah advises on all areas of family law (divorce/dissolution, cohabitation, domestic violence, children) and has worked with a broad spectrum of clients both nationally and internationally.

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