Surrogacy in modern Britain: Proposed changes to a law that is no longer fit for purpose.
If you are a fan of Radio 4’s The Archers or Channel 4’s Hollyoaks, you will be aware of the difficulties which can arise when having a child via surrogacy.
For some, having a child naturally is not possible, either due to fertility issues or due to being in a same sex relationship. As Kieron Richardson explained to the Loose Women on ITV last month, surrogacy gave him and his husband the chance to have a “biological child” rather than opting for adoption. After two failed attempts, a successful surrogate pregnancy produced twins, Phoebe and Chase, in May 2017. The birth of the babies was not the end of their story. The current law, requiring the names of the surrogate mother and her husband to be registered on the children’s birth certificates, meant that until the legal process (referred to below) was complete, there was always a worry that the surrogate would change her mind and take the babies back.
In The Archers, gay couple Adam and Ian have recently had a baby by surrogate mother Lexi. Adam is the biological father of baby Alexander conceived through egg donation. The father’s extended family members are concerned that the surrogacy arrangement will break down.
In Hollyoaks, Liberty offered to carry her sister Sienna’s baby, subsequently changed her mind before then changing it back again.
These story lines, whilst fictional, raise pertinent questions for people who wish to create a family through surrogacy. For example, what happens if the surrogate changes their mind? What rights do the intending parents have?
The relevant law is contained within the Surrogacy Arrangements Act 1985 and Human Fertilisation and Embryology Act 2008. The law relating to surrogacy is therefore rather antiquated and not yet caught up with modern alternative family set ups.
The surrogate is automatically the legal mother of the child and, if she is married or in a civil partnership at the time of treatment, her spouse/civil partner is automatically the legal father/second parent – unless the latter did not consent to the treatment. It is them who are named on the baby’s birth certificate, and it is them who have Parental Responsibility for the baby. This is clearly unsatisfactory when the intention is that the baby’s home will be with the intending parents who do not automatically have Parental Responsibility. The intending parents will only obtain Parental Responsibility by applying to court for a Parental Order (or alternative order if neither are genetically linked to the child). This application must be made before the child reaches the age of 6 months, but cannot be made within the first 6 weeks of their life. There are various criteria which must be fulfilled and the surrogate (and her partner, if applicable) must give free consent. It is important to be aware that although surrogacy is legal if it is altruistic, (albeit reasonable expenses are permitted) surrogacy agreements are not enforceable.
The short answer to what rights the intending parent have is that if the surrogate changes her mind, there is very little the intending parents can do in the period prior to the Parental Order being granted as they are only granted rights once an order is made.
The Law Commission, whose consultation period regarding surrogacy has recently closed, makes various proposals to reform surrogacy law. One of the proposals is that intended parents should become legal parents at the time of the child’s birth, subject to the surrogate retaining the right to object for a short period of time. This would provide some level of reassurance for intended parents and in straightforward domestic (UK) cases may even avoid the need for a court application.
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IBB Solicitors’ family law practice can provide expert advice on surrogacy and other family law issues. To contact the family law team please email email@example.com or call 03456 381381.
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