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Surrogacy on the rise – legal rights and reforms

Surrogacy on the rise – legal rights and reforms

A growing number of people are turning to surrogacy as a route to parenthood, which has also come to prominence in view of a number of high-profile celebrities choosing to use a surrogate.

Additionally, technological advances such as IVF , the legalisation of same sex marriage in 2014 and a trend for having children later in life have all contributed to the growth in surrogacy.

Types of surrogacy and the law

Whilst surrogacy is not illegal in the UK, if you make a surrogacy agreement it cannot be enforced by the law.

Surrogacy, in England and Wales, is governed by the Surrogacy Arrangements Act 1985 and certain provisions of the Human Fertilisation and Embryology Act 2008. In the UK, the rules prohibit the negotiation of a surrogacy on a commercial basis – i.e. you cannot pay someone to be a surrogate. However, a surrogate may be reimbursed for ‘reasonable expenses’ incurred.

It did not become legal for same sex couples to be surrogate parents until 2010, and it only became legal for a single person to be a surrogate parent in January 2019.

There are two types of surrogacy:

Traditional – where the surrogate host is genetically related to the child, i.e. the surrogate’s own eggs are used.

Gestational – often referred to as host surrogacy where donor eggs are used, so the host surrogate is not genetically related to the child. This is done by the process of IVF and has thus only been available as an option since the 1980s.

For a surrogacy to be successful, it takes a great deal of trust, communication and empathy from both sides of the relationship. If you are considering using a surrogate, or are intending on being a host surrogate, then you need to take specialist legal advice as soon as possible.  Contact Wells Burcombe for advice and support – call the West Drayton office on 01895 449288 or the St Albans office on 01727 840900

Becoming a legal parent of a child born to a surrogate

To become the legal parent of a child born to a surrogate, you will need to either:

  1. Apply for a Parental Order, which legally transfers parenthood from the surrogate mother to the child’s intended parents. Applications should be made within 6 months of the child’s birth and you must be genetically related to the child, so this option is only available for cases of traditional surrogacy.
  2. Adopt the child. If neither of the child’s intended parents are genetically related to the child then adoption is the only available option.

If there is a disagreement about who the child’s legal parents should be, the courts will make a decision based on the best interests of the child.

The adoption and parental order process can be lengthy and the Law Commission has recently issued a public consultation paper aimed at updating surrogacy laws, which have become somewhat outdated. The paper contains provisional proposals such as allowing intended parents to become legal parents at the point that the child is born (subject to the surrogate retaining a right to object for a short period of time).

International surrogacy

International surrogacy has also seen an increase over recent years. Intended parents that enter into an international surrogacy generally do so in countries where there is a greater availability of surrogates (often where a commercial basis is allowed) and where the local laws are more favourable.

The laws governing surrogacy vary from country to country and international surrogacy can be fraught with difficulty. You will need legal advice in the laws of the foreign country, the legality of the arrangement and will need to consider the child’s immigration and nationality status.

Contact Wells Burcombe

Surrogacy can be a rollercoaster of emotion and conflicting tensions. If you’re considering using a surrogate or becoming a surrogate, it’s important that you understand the risks involved and obtain expert advice on the process. Call our specialists on 01895 449288 for our office in West Drayton, or in St Albans on 01727 840900, or email us.

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