Surrogacy law is an incredibly rewarding and less litigious part of family law; where you can feel proud in the part you play in helping your clients to grow their family unit and positively change their lives for the better.
However, it is crucial that when practising in this specialist area, you are equally prepared to support your clients with the undoubtedly emotional journey they are embarking on, as well as ensuring you are familiar with the relevant legislation.
In autumn 2022, the Law Commission will be reporting their recommendations to change some of the “archaic” parts of the relevant surrogacy legislation, including:
- Surrogacy Arrangements Act 1985 (SAA 1985);
- Human Fertilisation and Embryology Act 2008 (HFEA 2008);
- Human Fertilisation and Embryology (Parental Orders) Regulations 2010 (SI [2010]/[985]) (HFE 2010);
- Part 13 of Family Procedure Rules 2010 (FPR 2010);
- Section 1 of the Adoption and Children Act 2002 (ACA 2002; and
- The Children Act 1989.
It is hoped that the following key areas will be recognised and implemented into law:
- Creating a new surrogacy pathway that will allow, in many cases, the intended parents to become the child’s legal parents from the moment of birth;
- Introducing specific regulation for surrogacy arrangements and safeguards, such as counselling and independent legal advice. This should reduce the risk of arrangements breaking down; and
- Allowing international surrogacy arrangements to be recognised in the UK, on a country-by-country basis.
After familiarising yourself with the legislation, here are several things to consider when supporting the intended parents:
- Who are the intended parents? One of the considerations for same-sex couples in particular is the recognition of their relationship in the jurisdiction in which the baby will be born. In addition, a single person is not allowed to become a parent through a surrogate in England and Wales.
- Ask your intended parents if the surrogate will be the biological mother, known as “traditional” surrogacy; or if the surrogate will carry an embryo with one or both the intended parent’s egg and/or sperm, known as “total surrogacy”.
- Take detailed notes on financial arrangements between the surrogate and intended parents. By law, you cannot pay a surrogate to carry the baby. However, you can pay reasonable expenses before and after the baby is born. The Court will scrutinise those payments when considering an application by intended parents for a Parental Order, so make sure your clients keep a clear record of any expenses and what they were for.
- Explain the benefits of a surrogacy agreement with the intended parents. Whilst not legally binding, it will help both the surrogate and the intended parents in managing their expectations and their commitment to the arrangement.
- Ensure that the surrogate mother gives her consent for the arrangements. For the consent to be valid, it must not be given within the first six weeks of birth. If the surrogate mother is married, you must also gain consent from her husband or wife. Without that consent, the application for a Parental Order will fail. In this scenario, the intended parents may apply under the Children Act 1989 for a Child Arrangement Order. When such an application has been made, the Court must have regard to the welfare check list, and the paramountcy principle is what is in the best interests of the child.
- Consider where the surrogate lives; in England and Wales, legislation provides that intended parents can apply for a Parental Order (which legalises their status as the parents of the child) within six months of the birth of the child. In order to make the application, intended parents would need to provide a birth certificate and evidence of the genetic link between the baby and one or both of the intended parents.
Surrogacy is not an area of law for a family lawyer to advise on without sufficient knowledge of the relevant laws and willingness to provide support through such an emotional journey.
Rashmita Vadher is a family and surrogacy lawyer at international professional services firm Ince
