Although surrogacy arrangements are common in the UK, they are not enforceable; it is therefore difficult if things go wrong.
The laws on surrogacy are set out in the Surrogacy Arrangements Act 1985 and the Human Fertilisation and Embryology Act 2008.
The arrangement of surrogacy is a process which involves a woman (the surrogate) carrying a child for a couple (the commissioning parents). There are two types of surrogacy arrangement and it is important that any agreement be entered into prior to pregnancy:
Total surrogacy – this process uses an egg from the commissioning parent woman and sperm from the commissioning parent man both of which are embedded into the surrogate; the result of which is that the commissioning parents are the genetic parents but the surrogate remains the legal mother until a Parental Order is obtained.
Partial surrogacy – the surrogate is artificially inseminated with sperm of the commissioning parent male into her own egg; the result of which is the genetic and legal mother is the surrogate until a Parental Order is obtained.
Regardless of which method of surrogacy is used the arrangement should always be carried out at a licenced clinic.
Although there are other jurisdictions who are open to commercial surrogacies, in England and Wales it is illegal to carry out or even advertise commercial surrogacy. The only acceptable payment that can be made between the commissioning parents and the surrogate is to cover “reasonable expenses,” even if the surrogacy takes place overseas.
Once the child is born steps should then be taken by the commissioning parents to obtain a Parental Order. The application should be made before the child is six months old but the surrogate is unable to consent to the application within the first six weeks of the child’s birth. The commissioning parents are required to meet a number of strict conditions in order to obtain a Parental Order.
The effect of a Parental Order is that the surrogate mother’s rights are extinguished, and the commissioning parents become the child’s legal parents.
So, is the current law fit for purpose?
It is currently not possible for a single person to apply for a Parental Order.
There is the issue of prohibition of commercial surrogacy in England and Wales in comparison to other jurisdictions.
Previous case law in this area has also highlighted an incompatibility with the Human Rights Act 1998; Article 8 (respect for your private and family life) and Article 14 (protection from discrimination).
So, whilst England and Wales have embraced this new type of parenting it would unfortunately appear that there is still room for law reform.
If you require any further information in relation to the topics raised, please contact a member of the family team for an initial discussion.
