What is Surrogacy?
Surrogacy – when a woman carries a baby for a couple who are unable to conceive or carry the child themselves – gives, on average, some 2,000 British couples per year the chance to have a child of their own. It has become more common in the UK and the number of inter-jurisdictional surrogacy arrangements where the surrogate lives overseas is on the rise.
However, surrogacy laws are particularly complex and whilst surrogacy arrangements have paved the way for new possibilities for family structures, the legal rights of the adults involved are often misunderstood.
For example: there are strict rules relating to the surrogate, known as the birth mother, in respect of financial payment. More importantly, at the time of the child’s birth, the birth mother and even her spouse are considered to be the legal parents of that child, notwithstanding that neither of them may have a genetic relationship with the child.
The intended parents are not legally parents unless they have made the appropriate application for a parental order concerning the child in the right jurisdiction. If the correct applications are not made, children born to surrogates remain the legal children of their birth mothers rather than the intended parents who raise them as their own.
In an age where international surrogate arrangements are on the rise, the consequences of not obtaining legal advice can leave the children born from these arrangements to deal with a number of unexpected obstacles in later life: their domicile could be called into question, the basis upon which their parents care for them could be challenged and they may even become the subject of adoption proceedings which could otherwise have been avoided.
Whether you are in a heterosexual relationship, same sex relationship, married, unmarried or civilly partnered, it is crucial that you are fully informed of the rights and obligations of each adult involved in a set-up which can potentially include 5 different people: the birth mother, the donor of the egg, the donor of the sperm and the intended parents themselves.
The Law And Surrogacy
By way of a brief background, the following criteria must be met in order for a court to make an application for a Parental Order once a baby has been born from a surrogate arrangement:
- Both intended parents must be over the age of 18;
- At least one of the intended parents must be genetically related to the child
(having donated the egg or the sperm for conception);
- At least one of the intended parents must be domiciled in the UK;
- The conception must have taken place artificially (which can include home insemination) rather than naturally through intercourse; and
- The child must have his or her home with the intended parents at the time of the application
- The surrogate mother and her husband must fully and freely consent unconditionally to the making of the order at the time of the application
Practical Steps for those considering Surrogacy
Whilst you are considering your circumstances, there are a number of practical steps which can be taken by intended parents:
- Seek legal advice as early on in the surrogacy process as possible and ideally before a surrogate conceives;
- Research the kind of surrogacy you might want to consider. There are typically 2 types of surrogacy: ‘traditional surrogacy’ where the Intended Father’s sperm is artificially inseminated into the birth mother to facilitate conception or ‘gestational surrogacy’ where IVF is used to inseminate the surrogate with the Intend Mother’s egg and donor sperm and therefore the birth mother has no genetic relationship with the child. If you are thinking of surrogacy, the following link provides some helpful information: http://www.surrogacyuk.org/about_us/types-of-surrogacy
- Make an application for a parental order immediately after the birth of the child, even if you and your partner are not present in this jurisdiction so long as at least one of you is domiciled here;
- Make an effort to ensure that the communication with the surrogate mother (and her spouse) to facilitate the giving of consent to transfer parental responsibility to you is transparent, agreed and documented; and
- Ensure that a comprehensive record of all sums paid to the surrogate mother is kept and the purpose of the payment is available for inspection
At Rayden Solicitors, we can provide early, straightforward advice that will help you to consider whether you are comfortable with the way your surrogate arrangement has been set up. If you were unable to seek early advice and find yourself embroiled in unexpected circumstances, we will strive to achieve an outcome acceptable to you and your family. There are often time limits for the preparation and completion of the necessary applications and our specialist family lawyers are experienced in drafting applications and statements in firm but friendly manner.
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