Surrogacy and family law (Part one)

What is surrogacy?

Surrogacy is the practice whereby a woman carries a child for someone else with the intention that the child should be handed over at birth to the intended parent/s and raised as their child.

Surrogacy is legal in the UK, however it is an offence in the UK to carry out commercial surrogacy arrangements or advertise surrogacy services.

The key legal provisions for surrogacy arrangements are contained in the Surrogacy Arrangements Act 1985 (SAA 1985), the Human Fertilisation and Embryology Act 2008 (HFEA 2008) and the Human Fertilisation and Embryology (Parental Orders) Regulations 2010, SI 2010/985.

Types of surrogacy

How the child is conceived within the terms of a surrogacy arrangement will impact upon who is recognised as the child’s legal parents at birth.

Gestational surrogacy

Total (or gestational) surrogacy involves the intended mother donating an egg that is fertilised by sperm from the intended father before being implanted in the carrying mother (the surrogate).

Partial surrogacy

Partial surrogacy involves the artificial insemination of the surrogate using the sperm of the intended father.

At birth the legal mother of the child will always be the surrogate, the legal father will be the genetic father unless the surrogate is married at the time of conception – in which case the legal father will be the surrogate’s husband (unless it is proved to the satisfaction of the court that the husband of the surrogate mother did not consent to the insemination). The legal status of the child’s parents can subsequently be changed by way of a Parental Order or an Adoption Order.

What is a surrogacy arrangement?

In determining whether an arrangement is a surrogacy arrangement made with a view to the child being handed over at birth by the surrogate to the intended parent/s the following considerations apply:

1. the circumstances as a whole, and
2. whether there is a promise or understanding that any payment of reasonable expenses will or may be made to the surrogate or for her benefit in respect of the carrying of the child in pursuance of the arrangement.

A surrogacy arrangement is not enforceable by or against any of the persons making it.

The making of a surrogacy arrangement

Doing any of the following acts, where done on a commercial basis, is prohibited in the UK:

1. initiating any negotiations with a view to the making of a surrogacy arrangement
2. taking part in any negotiations with a view to the making of a surrogacy arrangement
3. offering or agreeing to negotiate the making of a surrogacy arrangement
4. compiling any information with a view to its use in making, or negotiating the making of, surrogacy arrangements
5. receiving payment made by or on behalf of a woman who carries a child in pursuance of a surrogacy arrangement, the person or persons for whom she carries it, or any person connected with either of those parties

A person who does any of the acts listed commits an offence. In addition, a person who takes part in the management or control of any body of persons, or of any of the activities of any body of persons, commits an offence. There is provision to exclude non profit-making bodies from such liability.

However, it is not an offence for the following persons to carry out any of the listed acts, or to cause such an act to be done:

1. a woman, with a view to becoming a surrogate mother herself
2. any person, with a view to a surrogate mother carrying a child for them

What is meant by ‘reasonable expenses’?

The payment of reasonable expenses in connection with bearing a child under the terms of a surrogacy agreement is allowed.

There is no statutory definition of ‘reasonable expenses’.

Each case must be scrutinised on its own facts. There may be reasons in some cases for payments to be made over and above reasonable expenses based on the child’s welfare. Other considerations will include whether the intended parent/s acted in good faith, and whether there has been any attempt to defraud authorities.

A surrogacy arrangement abroad

Significant difficulties can be encountered when embarking on surrogacy arrangements abroad. The guidance from the Foreign and Commonwealth Office should be considered by anyone embarking on a surrogacy arrangement abroad.

Legal parenthood

The usual course of action following the birth of a child born to a surrogate mother is for the intended parents to apply for a parental order. This is an order which grants the applicants the legal status of being the child’s parents – I will cover the legal implications and setting up of a parental order in part two of this blog series.