Family lawyer, Rachel Lemon provides an update in the Winter issue of American in Britain on the legal issues faced when building a modern family.
For some, having a family is not straightforward. It can involve a long period of planning and the help of a fertility clinic.
Although commercial surrogacy is prohibited in the UK and parts of the
US, surrogacy arrangements are becoming increasingly common. There are
different types of surrogacy.
Gestational (where the surrogate’s eggs are not used and the child is
conceived via in vitro fertilisation, IVF) and traditional (where the surrogate
is also an egg donor and the baby may be conceived via intra uterine
It is vital to explore the legal implications of a surrogacy arrangement
before fertility treatment starts. The Law Commissions are carrying out a
review of surrogacy law. It is hoped that changes will come into force
alleviating some of the problems with the current position. Some examples
- On birth, the surrogate and, if relevant, her spouse or civil partner are the child’s legal parents. This remains the case until a Parental Order is made to extinguish that status and grant it to the intended parents. Consent is required if a Parental Order is to be made.
That position supports the generally false notion that a surrogate sees the child as hers and that she wishes to have legal status as the child’s mother. In fact, cases where consent by the surrogate to grant legal parenthood to the intended parents is withheld are unusual. It is clear from those consulted by the Law Commissions that surrogates have no desire to be the child’s legal mother. They are clear that they are simply carrying a child to help someone have a family of their own.
The Law Commissions propose that the intended parents should be the legal parents from birth. It is proposed that the surrogate will have a defined time period post birth in which she can object.
- It is noteworthy that there has been significant growth in international surrogacy arrangements. It can be a lengthy process to obtain the required travel documents to get the child back to the UK. That can mean the child and the intended parents need to stay in a foreign country for a significant period of time.
The US is a common destination for international surrogacy. Different states vary in their approach and it is vital that you take advice from a specialist within your chosen destination.
The Law Commissions propose that intended parents who have gone abroad for their surrogacy arrangement will still need to apply for a Parental Order.
The reason for that is different countries operate different legal frameworks for surrogacy and it is vital that in these circumstances the court can assess the position on a country by country basis.
- There are few safeguards for those choosing a surrogacy arrangement. For instance, there is no requirement for legal advice to be obtained.
The Law Commissions propose that a number of measures be taken pre-conception (shifting away from the current post birth focus). Such measures include medical and criminal checks of all participants of the surrogacy arrangement, independent legal advice and implications counselling. A written surrogacy agreement is also to be entered into.
A new pathway is proposed for domestic surrogacy arrangements incorporating the above safeguards, an assessment of the welfare of the child and granting legal parenthood on birth – therefore avoiding the need for a Parental Order.
- There is a current requirement that there be a genetic link between the child and at least one of the intended parents. That excludes couples using double donation (sperm and eggs) in a surrogacy arrangement from obtaining a Parental Order.
The Law Commissions propose that the requirement for a genetic link be removed if, for medical reasons, either of the intended parents are not able to provide sperm or eggs.
The current requirement of domicile is also thought to be unnecessary and it is proposed that the requirements to obtain a Parental Order are to generally be broadened. The status of the intended parents’ relationship and the requirement that the child have his her home with the intended parents are also to be considered as is the issue of “reasonable expenses”.
Case law has already moved beyond some of the requirements as set out in
the current law to obtain a Parental Order so as to place the child’s welfare
as the central consideration. One example of that is, under the current
framework, there is a requirement that intended parents make their application
for a Parental Order within 6 months of the child being born. The court has,
since 2014 however, been prepared to make a Parental Order even if the
application is made outside of that window. It makes no sense therefore to
maintain that requirement where the courts do not action it in practice.
The Law Commissions’ paper is welcome. Reform is necessary. However, given
the current political landscape, we cannot say with certainty how long it will
be until we see any of the proposals come into force.
It is vital, regardless of how a baby is conceived, that the full legal
implications are considered before treatment starts. Hopefully parents can then
focus on enjoying their new arrival knowing that the legal aspects have been
fully understood and acted upon.
If you require information about the legal implications of fertility treatment and surrogacy, contact Rachel Lemon, the head of Mundays’ Modern Families Sector. Rachel can be contacted on 01932 590 612 or at firstname.lastname@example.org