Legal considerations around surrogacy

The law in relation to surrogacy in England and Wales is often said to be outdated and in need of reform. While this now appears to be in progress (the Law Commission is due to produce recommendations for a reform of the law this autumn), the current legal framework surrounding this rapidly evolving issue is unclear and, to many, it has not kept up with the developments in medical science or indeed society itself.

Commercial surrogacy in England and Wales is prohibited. Thus, not only it is not possible to pay for the services of a surrogate mother but it is equally not possible to advertise for surrogacy services. This inevitably means it is very difficult to find a surrogate mother in this country. The only payments that can be made are for the surrogate's reasonable expenses.

Furthermore, if intended parents do manage to find a woman willing to carry a baby for them, even if all parties agree the arrangement from the outset, upon the birth of the child the surrogate mother (and not the intended parents) is deemed to be the legal mother of the baby, even if she has no genetic connection to that child. What is often even more of a shock to all involved, is where the surrogate mother is married at the time of the birth of the child, her husband is deemed to be the child's father for legal purposes and is granted parental responsibility automatically upon the baby's birth (provided he consented to the arrangement taking place).

Legal parentage

The intended parents then need to embark on a complicated process of applying for a parental order in order to obtain legal parentage of the child. This must be done within the first six months following the child's birth. It is a relatively lengthy process involving several court hearings, the involvement of a Cafcass officer (a court appointed social worker) and the preparation of a formal detailed statement by the intended parents setting out the full background and the ways in which they have complied with the requirements set out in the Human Fertilisation and Embryology Act 2008.

The parental order cannot be made until at least six weeks after the birth of the child, so for the first few weeks of the baby's life its future is very much up in the air. Either party (the surrogate mother or the intended parents) could in theory change their mind during that period and there have been cases where this has happened.

For example, in the case of Re H (a child) [2017] EWCA Civ 1798 the surrogate mother changed her mind following the birth of the child and decided that she did in fact want to keep the baby. Equally, it is possible for the intended parents to change their minds and decide not to proceed with an application for a parental order, potentially leaving the surrogate mother with a baby that she never intended to keep. As a tragic example of this; in 2014, twins were born to a surrogate mother in Thailand but one of the children was born with Down's Syndrome. The mother alleged that the parents abandoned the baby with Down's syndrome, taking only the healthy baby back to their home in Australia.

Many UK couples choose to embark upon international surrogacy, choosing countries where the process is clearer, more transparent and well regulated (providing better protection for all those involved via legally enforceable surrogacy agreements). For example, there are countries where the intended parents are automatically considered the child's legal parents when the child is born which can provide greater reassurance to those involved and reduce the risk of the tragic cases mentioned above.

However, there can be complications in bringing the baby back to the UK. Many intended parents do not realise that, even if they have jumped through all of the necessary hoops in the country in which the surrogacy arrangement was entered into, they still need to apply for a parental order in the UK in order to achieve the legal recognition of their parentage.

International surrogacy

Bringing the baby back to the UK can invoke complicated immigration law considerations. Babies born to surrogate mothers abroad will not necessarily automatically gain British citizenship. Unless the child has automatically gained British citizenship (which can only be gained if the surrogate mother is unmarried and the intended father satisfies various prescribed requirements and is able to prove parentage) it is necessary to apply for the baby to be registered as British, which is at the discretion of the Secretary of State and can often take a considerable length of time.

In countries where surrogacy is accepted and well regulated, such as the USA, the child will automatically obtain an American passport which allows them to travel back to the UK whilst the issue of their British residency is resolved.

However, in other countries, such as India, the child may be born without an Indian passport and would therefore be unable to travel to the UK until the British passport has been granted. This can involve huge delays, as illustrated by the case of Re Z (Foreign Surrogacy: Allocation of Work: Guidance on Parental Order Reports) [2015] EWFC 90 in which there was a delay of over a year in obtaining British passports for twins born to a surrogate in India. During this time the twins had to be cared for by nannies in India and spent very limited time with their intended parents, causing the English court to express real concerns regarding the lack of attachment formed by the children to their parents during this time.

Same sex couples should also be particularly careful when choosing an appropriate destination for an international surrogacy arrangement. Some jurisdictions, for example India and Russia, do not allow surrogacy to same sex couples and a lack of proper regulation in many countries exposes all those involved (intended parents and surrogate mothers alike) to potentially significant risks. In contrast, whilst commercial surrogacy is prohibited in England and Wales, intended parents are able to apply for a parental order regardless of whether they are a same-sex couple or an opposite sex couple.

The law in relation to surrogacy, both domestically and internationally, is full of complexities and pitfalls. It is vital to take proper legal advice in advance of entering into any surrogacy arrangement, so as to avoid being caught out. There is now a real need, not only for reform of the law in England and Wales, but also perhaps for a well regulated international treaty to be put in place providing better safeguards for parties embarking on their surrogacy journey.

Harriet Errington is a partner and Pippa Cook is an associate at Boodle Hatfield boodlehatfield.com

Copyright & permissions