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I’ve been fortunate enough to practise in the field of family law since I began my career at the Bar and have always been attracted to it because it involves people – at their worst and at their best of course but none the less it focuses on real day to day problems for people that need solving. When the first cases involving surrogacy began to appear in the High Court I was fascinated by the way it represented a new area within the broad spectrum of family law that to a large extent had a focus on parties trying to reach an arrangement for a child that, very often, all the parties were agreed upon. This was very different from cases where parties were in dispute about contact with a child, for example where they would be seeking different things. More than that I would say it is an exciting avenue of law as it symbolises how things have moved on in this country and how fortunate we are to have so many new forms of ‘family’.
There are two main legal issues to be aware of above all I would say. Under current law, the woman who gives birth to the child is that child’s legal mother and it does not matter whether they are biologically related or not. You have to apply for a parental order to transfer the legal status of the surrogate (and her spouse) to you and your partner, you need to do this within the first 6 months of the child’s birth.
The second key issue to be aware of is that under the law as it currently stands, only a couple, gay or straight, can apply for a parental order, you cannot apply as a single person.
Without doubt the most important advice, even before you get onto legal issues, is that you seek specialist advice from an experienced solicitor.
From my experience, these are the issues that are not generally known when people come to consider beginning a surrogacy process.
I was fortunate enough to be involved in the case of Re M (Child)  EWCA Civ 228 with Deirdre Fottrell QC in the Court of Appeal representing a surrogate. That case gives a very clear example of the real importance of getting proper legal advice. In that case, a gay couple in a civil partnership were the applicants. They already had twins born in 2013 as a result of a surrogacy arrangement with a previous surrogate. They wanted another child and found a surrogate using a Facebook surrogacy forum (bad idea!). The parties met briefly in person to sign an agreement and then travelled to Cyprus for the transfer of embryos to this surrogate who they hardly knew. The applicants, the Judge found were ‘potentially exploitative’ of the surrogate who had learning difficulties. The Judge ordered that the child live with the surrogate and spend time with the applicants on the basis she would best meet his welfare needs. The applicants appealed but were unsuccessful at the Court of Appeal. A really interesting case!
Well first of all many don’t realise that any form of agreement you enter into is not legally enforceable in the way of say a contract. If a surrogate decides to keep a child after birth then you could find yourself having to issue court proceedings for a Judge to decide the arrangements for your child.
Also, people are understandably not clear on what the process is or why they need to apply for a parental order. Just to be clear, if you have a child through surrogacy you need to apply for what is called a parental order so as to transform your legal status and that of the child – so that they became your legal child! To do this the court has to be satisfied that the criteria set out in the Human Fertilisation and Embryology Act 2008 (HFEA 2008) is met which in summary is:
And also that making such an order meets the welfare needs of the child. However, as a Judge said some years ago:
‘The difficulty is that it is almost impossible to imagine a set of circumstances in which by the time the case comes to court, the welfare of any child (particularly a foreign child) would not be gravely compromised (at the very least) by a refusal to make an order.’
In the vast majority of cases the surrogate, who let us remember is doing this in the first place because they want to help a couple have a child, do not regard the child they are carrying as their own. There are, happily, very few cases where the surrogate seeks to keep the child. However, it is important to recognise that the woman who gives birth is always treated as the legal mother and has the right to say they wish to keep the child – which would then mean a court process for the Judge to decide what is in the best interests of that child.
The law at present is that no surrogate may receive any form of payment during or after a surrogacy agreement but it is legal to pay ‘reasonable expenses’ that the surrogate incurs. Now I know people will want to know what constitutes ‘reasonable expenses’ but that varys greatly and depends on the circumstances of the surrogate.
You need to consider the travel costs for when the surrogate and her family come to see you, for her travel to and from the fertility clinic or hospital; loss of earnings may need to be considered; money for maternity clothing may be required as well as childcare for her own children. I would say that roughly speaking, figures are in the £9,000 – £15,000 area.
I well see that the process can seem a daunting one especially if a couple do not know any other people who have been through the journey. It is important to try and speak to people who have been through a surrogacy journey so I would suggest looking at various Facebook groups for people who have been through the surrogacy process successfully. The benefit of this is not just to meet other people but actually to give reassurance that these things can really happen! Without repeating myself it is vitally important to get proper legal advice. Without that you are literally inviting trouble! You and your surrogate must be clear in the terms of any surrogacy agreement so that everyone knows what the other wants. Communication, as ever, is key!
The law relating to surrogacy is desperately out of date and quite frankly ‘not fit for purpose’. For example, under the current law surrogacy agreements are unenforceable and the surrogate and her spouse are the legal parents of a child from birth. Where a couple have a child through an overseas surrogacy arrangement they will be the legal parents in that overseas country where the child is born but not in this country! Also, it is not possible for a single person to apply for a parental order in this country, it has to be a couple – all these areas are in need of serious reform.
Finally, Parenthood is transferred to the intended parent through a court process that can take up to a year and operates through an outdated criterion.
I really would like to see a structure that where the parties agree, the parental orders are made during the pregnancy to make the intended parents the child’s legal parents from birth.
I really caution people from looking for surrogates through Facebook, for example. There are at present 3 non-profit surrogacy agencies in the UK, COTS, Surrogacy UK and Brilliant Beginnings and I would urge anyone thinking of surrogacy to start with looking at these.