With the advancements in fertilisation and embryology it is becoming increasingly commonplace for prospective parents to turn to surrogacy to realise their dreams of parenthood. This can be an agreement with a friend or family member, assistance through an organisation to facilitate arrangements between the parents and surrogate, or, and perhaps carrying the most risk, through social networking.
Although many parents seek medical advice on how a child could be conceived using a surrogate, what they fail to do is seek legal advice on the implications of using a surrogate mother, and most importantly the legalities of what happens after the child is born.
Surrogacy within the United Kingdom is defined by the Surrogacy Arrangements Act 1985. Despite the existence of the Act for over 30 years, few know of it, and even less know the principals set out in the Act, especially that surrogacy agreements are not legally binding in this country.
Those who enter in to a surrogacy agreement may make the erroneous presumption that once the child is born the commissioning parents will be the legal parents of the child, this is not the case. By law the surrogate mother is the legal mother, and if she is married her husband will be legally recognised as the child’s father. Upon the birth it is then necessary for the commissioning parents to apply to the court for a parental order appointing them as the child’s parents and extinguishing the rights of the surrogate and her husband, if applicable. As the application cannot be made until the birth of the child the baby is legally vulnerable as to his/her parentage at least for several weeks. Of course there is the added complication should the surrogate mother subsequently change her mind after the birth of the child.
Matters are further complicated if commissioning parents enter in to an international surrogacy agreement overseas. Although these agreements are often through a reputable clinic, legal advice is frequently not sought, firstly as to the immigration status of the child, and secondly the UK courts questionable jurisdiction for the child in order to make the necessary parental order. Commissioning parents can find themselves unexpectedly, in the absence of legal advice, having care of a child who is effectively in legal limbo and embroiled in complex High Court proceedings.
If you are considering a surrogacy agreement either as a surrogate or a commissioning parent, or you need legal advice in relations to children or family law matters, please contact us to speak to one of our family law solicitors.