10:48am Tuesday 16th March 2010
By Harjit Sarang
A fertility lawyer is often asked to advise on the legality of surrogacy. Parents have usually been through fertility treatment and have spent thousands on paying for the best fertility clinics and agencies in the country. They then consider the option of surrogacy.The three most frequently asked questions are “What if the surrogate mother changes her mind?”, “Who money should exchange hands?”
Surrogacy laws are beyond the scope of this blog. In summary, the surrogacy must not form part of a commercial agreement. There are reputable surrogacy agencies who assist couples in finding a surrogate and act on a not for profit basis. If you enter into a surrogacy agreement, the surrogate mother will always have the right to change her mind. In that respect, surrogacy agreements are unenforceable.
If the surrogate does change her mind when the child is born, the couple may apply to the court for an order as to where the child should live. The Judgement will depend on what is in the best interests of the child.
The ‘legal’ mother is the surrogate because she gave birth to the child. The ‘legal’ father depends on how the child was conceived, whether the surrogate was married or in a Civil Partnership and if so, whether the husband / Civil Partner consented. If neither of you are ‘legal’ parents then you have no legal rights for the child and therefore you are technically private fostering which has its own rules and regulations.
Assuming that the child was not conceived by sexual intercourse, the ‘intended’ parents need to apply to the court for a Parental Order as soon as the child is born and in any event within 6 months of the birth. The Parental Order will give the parents full parental responsibility for that child and a new birth certificate may be issued. The surrogate mother and her husband/civil partner will need to freely consent to the Parental Order when the child is 6 weeks old.
When deciding whether to make a Parental Order, the court will consider, amongst other things, the money paid to surrogate. The sum paid should be no more than ‘reasonable expenses’ surrounding the pregnancy and may include paying for private medical care. The court wants to be satisfied that the parents have not made a huge payment that may suggest a commercial agreement.
Other matters to consider when entering into a surrogacy arrangement include, making provision in a Will in the event of a death before the parental order has been made and securing necessary consents for a parental order. International surrogacy is subject to further rules and regulations including immigration.
The process of surrogacy can be straight forward and rewarding if all parties know what their legal rights are and follow an agreed path. It is essential to get legal advice before entering into a surrogacy arrangement whether here or abroad.
Best regards, Harjit Sarang
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