A news story has been gaining attention recently about former Olympic diver Tom Daley and his film director partner Dustin Lance Black, and their efforts to bring a child into their family. This has drawn the public’s attention to the somewhat controversial legal position in England and Wales towards paying surrogate mothers to carry a child for you.
In short, the couple found out that while surrogacy is legal in the UK, it can not be arranged commercially. This means you cannot advertise for or pay a surrogate (other than for their “reasonable expenses”). In some states in America, on the other hand, surrogates are paid under contract like any negotiated service, usually resulting in fees of around $35,000 – $40,000 plus expenses compared to approximately £15,000 compensation in the UK.
In addition to this, at birth the surrogate is legally seen as the child’s mother and if she has a partner, they would be the father. Whoever is to raise the child then has six months from the birth of the child to apply to Court for a “parental order”, which will remove the surrogates’ parenthood and grant parental status to the applicant(s). At this stage, the Court must assess the compensation received by the surrogate mother, and must decide if they will authorise the payment of any amount considered to be above “reasonable expenses”.
The first point to note is that in reality, the Court has never refused to authorise a payment, largely due to the risk they would cause to the welfare of the child. One thing many people may not realise is that there can be a lot of difference between how the law is applied in practice compared to how it is written, which is one of the benefits of obtaining specialist advice on the options available to anyone considering getting a surrogate.
A potential downside which has to be kept in mind is the risk of the surrogate mother changing her mind and deciding she wants to keep the child. This is a serious problem as until a parental order is made, the woman who gives birth to the child is treated as the mother by the law (even if she is not genetically related to them). While this is clearly a major concern, a recent case has demonstrated the Court is willing to rule in favour of the originally intended parents, as the most important factors in deciding with whom they should live are the child’s genetic relationships and welfare.
Perhaps the clearest sign that the law may need to change is the Law Commission deciding to consider reforming surrogacy laws in their 13th Programme of Law Reform. The outcome of this project, which is due to begin in Spring 2018, will shed light on the future of surrogacy in the UK.
For the time being, to speak to a specialist family lawyer in Blackburn, Burnley, Preston and across Lancashire and the North West, please call 0845 287 0939 or contact us through our online enquiry form. You could also utilise our free Family Law Clinic service for some initial advice.