Many childless couples now look to international surrogacy as a means to become parents. In the UK the rise in the numbers of infertile or gay couples seeking surrogate mothers has not been matched by the numbers of women willing to act as surrogates. This, along with high medical costs, has led to a huge increase in international surrogacy.
The disparity between international regulation and UK regulation means that couples facing legal complications have also increased dramatically. The most important aspect of this to prospective parents is in the application for a Parental Order which, if not granted, can cause significant problems for both the child and the commissioning parents. This is a particular risk where couples pay disproportionately high fees for surrogacy abroad - commercial surrogacy is not generally permitted in the UK.
Parental Orders
English law regards the woman who gives birth to a child as its mother and, if she is married, her husband as the father. Parental orders are required to transfer the legal parental rights from the surrogate parents to the couple who commissioned the surrogacy after the child is born. The main legislation governing surrogacy in the UK is the Human Fertilisation and Embryology Act 2008. Parental Orders are dealt with under Section 54.
Requirements
The requirements of the Human Fertilisation and Embryology Act 2008 are significant and may be summarised as follows:
- There must be a biological connection to at least one of the applicants
- The applicants must be husband and wife, civil partners or two people living in an enduring family relationship and not within prohibited degrees of relationship in relation to each other
- The applicants must apply for the order within 6 months of the child being born
- At the time of the application and the making of the order the child's home must be with the applicants and the applicants must be domiciled in the UK, the Channel Islands or the Isle of Man
- At the time of the making of the order both applicants must be over 18 years of age
- The woman who carried the child must have freely, with a full understanding of what was involved, agreed unconditionally to the making of the order
- The agreement to the making of the order is invalid if made less than 6 weeks after the birth of the child
- No money or other benefit must be paid for the surrogacy other than for 'expenses reasonably incurred'
Given the complexity of this area of law, we strongly encourage couples considering international surrogacy to take specialist legal advice before entering into surrogacy arrangements abroad. Such couples also need to consider the strict immigration requirements which need to be met in order to bring the child into the UK once born.
If you are considering, or have already entered into, an international surrogacy arrangement and need specialist advice or if you would like more information on international surrogacy please contact Jeetesh Patel via e-mail jpatel@rollingsons.co.uk or by telephone on 0808 159 5250.
