As Tom Daley and husband Dustin Lance-Black announce that they are starting a family, attention has been brought to the UK’s current laws on surrogacy.
In the 21st century where family structure can be very diverse, there are moves to make the current surrogacy laws more flexible. The government has recently published guidance on surrogacy for LGBT+ parents wishing to create a family and intends to introduce legislation to enable single parents to apply for parental orders.
How does surrogacy work?
There are two different types of surrogacy arrangements:
Straight surrogacy is when a surrogate uses her own eggs for the pregnancy. The intended father (in either a heterosexual or male same-sex relationship), provides a sperm sample for conception through self-insemination at home or artificial insemination with the help of a fertility clinic. If there are fertility issues, embryos may be created in vitro and transferred into the uterus of the surrogate.
Host surrogacy is when the surrogate does not provide the egg to achieve the pregnancy. In such pregnancies, embryos are created in vitro and transferred into the uterus of the surrogate using eggs of the intended mother, fertilised with sperm of the intended father or donor. Alternatively, if the intended mother cannot use her own eggs or if the intended parents are a same-sex male couple, eggs of a donor will be fertilised with sperm of the intended father.
What are the legal implications in the UK?
Although surrogacy is legal in the UK, there are various constraints and complications.
Under current law, the woman who carries the child and gives birth is always known as the child’s legal mother, even if they are not biologically related. This can cause issues if a surrogate decides they wish to keep the child as any contract that couples enter into with a surrogate is not legally enforceable.
However, when the child is born, the intended father can be put on the birth certificate – granting him equal rights with the surrogate mother (if she is not married). It is not until six weeks after the birth that intended parents can apply for a Parental Order, giving them both full and permanent rights over the child.
If neither of the intended parents is genetically related to the child, then they will need to apply for an Adoption Order.
It is also illegal to advertise that you are willing to be a surrogate and are looking for prospective parents, or for a third party (e.g. not intended parents or a surrogate) to provide surrogacy services for profit. A surrogate cannot be paid for her services in the UK, and is only entitled to reasonable expenses that arise as a result of her pregnancy.
What is a surrogacy agreement?
It is essential to have a surrogacy agreement in place to ensure that parties agree on all aspects of the arrangement. While this is not a legally binding document, the agreement can be fundamental for any decisions that need to be made throughout the pregnancy, as well as reasonable expenses the intended parents will pay to the surrogate.
Additional considerations for the agreement can include:
- Pre-conception arrangements
- Conception arrangements
- Pregnancy arrangements (e.g. emotional support, appointment involvement etc.)
- Birth arrangements
- Post-birth arrangements
- Communication and future relationship (with regards to the child)
- Crisis consideration (e.g. miscarriage, still birth, or multiple pregnancies)
- Breakdown of reasonable expenses, e.g.
- Loss of earnings (both the surrogate and their partner)
- Maternity clothes
- Supplements or medication
- Travel and accommodation before, during and after pregnancy
- Legal costs (e.g. updates to wills, parental order application, legal advice)
How do I apply for a Parental Order?
The Parental Order ensures that parenthood is assigned to the intended parents and that the surrogate relinquishes her rights to the child. Once the Parental Order is made, a new birth certificate is issued naming the intended parents as the legal parents. This applies to both heterosexual and same-sex couples.
To obtain a Parental Order the following conditions must be met:
The intended parents must both be over 18 and married, civil partners or living together in an enduring family relationship. At least one of them must be a biological parent of the child and be domiciled in a part of the UK, Channel Islands of Isle of Man.
The conception must have taken place artificially and the child must have their home with the intended parents at the time of the application.
The intended parents must submit their application within six months of the child’s birth; however, the surrogate mother cannot give her consent until the child is six weeks old.
The intended parents must complete Form C51 and submit it to a Family Proceedings Court of their choice. Upon receipt of the form, the court will issue an acknowledgement form which must be given to the surrogate mother (and her partner). The surrogate parents must then sign and return the forms to the court.
It is not possible to apply for a Parental Order if the intended parent is single.
How do I apply for an Adoption Order?
If neither of the intended parents are genetically related to the child, or there is only one intended parent, the only way to become the child’s legal parent is via adoption.
Application for an Adoption Order is usually done via a Family Court, but the child must have lived with the intended parents for at least 10 weeks; the Adoption order gives intended parents full legal parental rights and responsibilities for the child.
If you choose to adopt, a registered adoption agency must be involved throughout the surrogacy process.
More information can be found in the Surrogacy Arrangements Act 1985 and the Human Fertilisation & Embryology Act 2008.
If you’re considering starting a family through surrogacy, it is always worth seeking legal advice. Caversham Solicitors offer friendly, professional advice and can help you every step of the way, including the parental order process. Call today on 0800 085 5575.