Last week was an eventful week for high profile baby news. At the beginning of the week the Duke and Duchess of Cambridge announced that they are expecting another child. This was followed by the news later in the week that Kim Kardashian and Kanye West are also expecting a baby, due early next year. For both couples, the new addition will be their third child, however, the one big difference is that unlike the Duchess, Kim is not carrying her child. Kim and Kanye have reportedly paid $113,850 for a surrogate to carry their baby girl.
The couple’s decision to use a surrogate as a result of Kim’s health concerns has been well documented and Kim had originally approached one of her sisters to carry the baby for her. However, it is now understood that the couple will be paying a surrogate who has been sourced through an agency.
So what are the legal implications for Kim and Kanye?
Surrogacy is the process by which a child is carried through pregnancy by another woman. The other woman will have entered into an arrangement with the commissioning parent/s before she started carrying the child. The intention is that, at birth, the child and parental responsibility for the child will be transferred to the commissioning parent/s and that they will become the legal parent/s for the child.
If Kim and Kanye’s surrogacy arrangement was taking place under the law of England and Wales, the surrogate mother would be treated as the child’s legal mother until the situation is changed through an order of the court. It is not possible for a surrogate to simply give up parental responsibility. The commissioning parent/s are required to take active steps to legally transfer parents responsibility on to them.
The requisite order that the commissioning parents would have to make would either be the making of an adoption order or a parental order under section 54 of the Human Fertilisation and Embryology Act 2008.
The financial arrangement
Kim and Kanye are reportedly paying their surrogate $113,850 to carry their child. While it is legal to make this type of commercial arrangement in some US states, if the same arrangement was made in England and Wales, it would be illegal. This is because the law prohibits commercial arrangements for surrogacy in the UK. A court must be satisfied that no money or other benefit has been exchanged for any part of the surrogacy arrangement. The only money that can be exchanged is for expenses reasonably incurred.
These restrictions in England and Wales have resulted in a low number of women willing to act as a surrogate in this jurisdiction and in many couples looking abroad to find surrogates in countries that have less restrictive regulatory regimes. While this may sound simple enough, this carries a number of legal pitfalls, the key one being that any order made abroad is not enforceable or recognised in the England and Wales. Commissioning parents must still apply for parental orders in the UK courts despite any order or arrangements reached abroad.
Given the complex nature of surrogacy law, we would strongly urge anyone considering a surrogacy arrangement to seek legal advice as early as possible.