In celebration of National Fertility Week 2019, we ask Fertility specialist Beverley Addison to answer your most asked questions about all things Fertility Law. Today we are talking about becoming parents via surrogacy.
Surrogacy has for a long time been sensationalised in the media as a practice to be avoided, but nowadays things are changing, and with the recent consultation paper being published on Surrogacy Reform it looks like we are getting closer to having a law better fit for purpose.
Q: What is surrogacy?
Surrogacy is when someone else carries a baby for a couple who are unable to carry the baby themselves.
Common scenarios might be a family member agreeing to carry a baby for her sister who has fertility problems, or a friend of a male same-sex couple, agreeing to carry a child for that couple
There are two types of surrogacy: gestational surrogacy (where IVF is used to implant an embryo made of the intended parent’s sperm and egg) or traditional surrogacy (which uses the surrogate’s egg and the intended father or sperm donor’s sperm).
Q: What does the law say about surrogacy?
Surrogacy in the UK is legal, but not on a commercial basis. Surrogates may only receive ‘reasonable expenses’ for their efforts, and any payment of remuneration can be and has been, challenged in court. Intended parents (known as ‘commissioning couples’) must make their surrogacy arrangements on an altruistic basis, and surrogacy contracts are unenforceable.
Once a child is born through surrogacy, the intended parents must apply to the court for a Parental Order to become the legal parents of the child.
Q: Who are the child’s parents when using a surrogate?
The law currently says that the woman who gives birth to the child will be the child’s legal mother, which means that the surrogate will always be considered to be the child’s legal mother. If she is married then her husband or civil partner will be the child’s second parent and the law requires them both to consent to the Parental Order being granted.
If the surrogate is not married and the intended father’s sperm was used to create the embryo, then he can be considered the legal father of the child.
Q: What happens if the surrogate changes her mind?
This is always the most common question asked by those about to start their new journey, and the first thing to know is that such situations are extremely rare, and usually only occur in cases where there has not been enough discussion about each party’s expectations after the birth. This can be avoided by discussing that scenario in detail before embarking on the process.
If that does happen, then the surrogate (and her partner if she has one) will continue to be the legal parents of the child and the court will be asked to determine who should be the child’s parents based on what is in the child’s best interests. Surrogacy agreements are unenforceable.
Q: Is the law on surrogacy changing?
We hope so! The Law Commissions of England, Wales and Scotland have joined forces to produce a suggested reform to surrogacy law which will apply across the UK. They have recently published their suggested changes to the law, which in simple terms involves introducing a ‘new pathway’ for intended parents to be recognised as the child’s legal parents from birth if they meet certain criteria before the child is conceived (such as obtaining independent legal advice, using a registered clinic, and going through medical checks, criminal record checks, and implications counselling).
You can keep up to date with the progress of the law on our website.
The top takeaway when using any form of assisted conception is to get legal advice before you embark on your journey so that you know exactly where you stand. This helps you to avoid any pitfalls and let you focus on the exciting part, becoming a parent!