The law on surrogacy has been evolving and has culminated in the Human Fertilisation and Embryology Act 2008 which is fully in force from 6th April 2010. There are specific rules on the acquisition of parental status for those in a male and female same sex partnerships and for the determination of who is a parent. The Act allows both civil partners and those in "an enduring family relationship" to apply for a Parental Order for children born to a surrogate. The law relating children born of a surrogate is complicated especially where the child is born through an overseas surrogacy arrangement.
There are two types of surrogacy; traditional surrogacy, where the child is the genetic child of the surrogate mother, and gestational surrogacy, where there is no such genetic connection.
In England the provision of fertility and assisted reproduction services is strictly controlled and licensed. It is illegal to advertise for a surrogate or to advertise a willingness to become a surrogate. It is illegal for any person (but not the surrogate and commissioning parents) to make arrangements or negotiate a surrogacy arrangement on a commercial basis.
Accordingly organisations that assist with surrogacy arrangements in England are strictly controlled as non-profit entities.
The most important legal aspect is the acquisition by the commissioning parents of legal parenthood. Whether a traditional or gestational surrogacy, under English law the birth mother always has parental responsibility for the child. If she is married or in a civil partnership the partner will be treated as the other parent. The HFEA provides the means by which the parental responsibility of the birth mother is removed and all parental rights are vested in the commissioning couple equally. This is called a Parental Order.
In considering whether or not to grant a Parental Order the Court has to be satisfied that:-
What constitutes reasonable expenses will be the subject of court scrutiny. It has been said that the court must be alive to what are, in effect, commercial arrangements and "anything that looks like a simple payment for buying children overseas".
A reporting officer will be appointed by the court to undertake a comprehensive enquiry into the living arrangements for the child and the payments made to the surrogate.
In England surrogacy agreements are not binding and cannot be enforced. To avoid uncertainty and the withdrawal of consent many commissioning parents make overseas arrangements in a country where they are binding.
With overseas arrangements, complex issues of immigration and nationality law arise. It will be necessary to obtain permission for the child to enter the UK for immigration purposes.
Problems in obtaining a Parental Order are most likely to arise where a commissioning couple have inadvertently breached the provisions of the HFEA or have immigration problems. It is inevitable that there will be a number of reported cases coming before the courts for determination on the provisions, implementation and consequences of the HFEA 2008.
Commissioning parents must remember that where a child is born into or joins any family other consequences flow. For example, it will be necessary for the commissioning parents to consider making wills and to consider provision for a child in the event that one or both of them pre-decease the child.
Click here to read From Heartbreak to Triple the Joy, the story of Edward and Karin Wong's journey to the birth of their triplets via gestational surrogacy, assisted by an international team of surrogacy experts including Dawson Cornwell.