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Surrogacy - legal issues of surrogacy

The Private Healthcare UK guide to infertility treatment contains articles on infertility and IVF treatment which are aimed at improving your knowledge of treatments for infertility, their benefits and potential risks.

 

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What is the legal position?

The law does not prohibit surrogacy; however, it is illegal for an individual or agency to act on a commercial basis to organise surrogacy arrangements.  It is prohibited for a couple to advertise for a surrogate mother, or for a woman to advertise that she is willing to be a surrogate.  Voluntary agencies like COTS can give information and support to those interested in surrogacy, and put potential surrogate mothers and intended parents in touch with each other.

 

Full surrogacy, which involves the creation of embryos outside the body, must be performed in a clinic licensed by the HFEA.

 

No surrogacy arrangements are enforceable by law.  Therefore, irrespective of whether a contract has been signed, or any money has changed hands, either party could change its mind at any time.  For this reason, it is important that all parties should consider these implications very carefully.

 

Registration of birth in surrogacy cases

Surrogate parents (birth mother and her partner/husband) are the legal parents of a child born through a surrogacy arrangement until legal parentage is transferred to the commissioning couple.  The surrogate mother must therefore register the baby to which she has given birth in the normal way.  Her husband or partner is expected to register as the father.

 

When a parental order has been granted by a court, the Registrar General will make an entry in a separate Parental Order Registration re-registering the child.  This will be cross-referenced with the entry in the Register of Births.  It will not be possible for the public to make a link between entries in the Register of Births and the Parental Order Register.  It will be possible for adults who are he subject of parental orders to gain access, after being offered counselling, to their original birth certificates.

 

Parental Orders in Surrogacy Cases   (Ref. HFEA Code of Practice 6th Edition)

These conditions must be fulfilled in order for a parental order to be granted:

  • The child must be genetically related to at least one of the commissioning couple

  • The surrogate parents must have consented to the making of the order (unless incapable of giving consent or are untraceable) no earlier than six weeks after the birth of the child

  • The commissioning couple must be married to each other, and both must have reached the age of 18

  • The commissioning couple must have applied for an order within six months of the child’s birth

  • No money, other than expenses, must have been paid in respect for the surrogacy arrangement, unless authorised by a court

  • The child must be living with the commissioning couple

  • The commissioning couple must be domiciled in the United Kingdom, the Channel Islands or the Isle of Man.

 

Application forms for parental orders are available from Family Proceedings Courts (Magistrate Courts) in the commissioning couple’s home area.  Legal Services Commission funding may be available to cover parental order proceedings.

 

In any proposed surrogacy situations where the above requirements are not met, the requirements of the Adoption Act 1972 would need to be taken into account.  This requires the involvement of an approved adoption agency.

 

Situations that may arise that could mean a parental order could not be applied for include:

  • The commissioning parents are not married

  • There is no genetic link between the commissioning parents and the baby the surrogate is carrying.  This would be, for example, where donor sperm had been used in a partial surrogacy arrangement (i.e. using the surrogate’s egg) or donated embryos had been used to initiate the pregnancy

  • Payment beyond reasonable expenses had been given to the surrogate mother

  • The commissioning parents are not domiciled in the United Kingdom, the Channel Islands or the Isle of Man

 

Clinics must not offer surrogacy in these situations unless they have taken account of the legal requirements of the Adoption Act 19721.  This would include the need to involve a registered adoption agency prior to the birth of the baby and the full adoption procedure would need to be gone through.  Where a child is born to a surrogate mother, the placement of that child with the commissioning couple for them to adopt may involve a breach of the Adoption Act 1972.  Clinics are in danger of breaching the Adoption Act 1972 if they set up or offer to set up a surrogacy arrangement that could not result in an application for a parental order being applied for.

 

1 Section 11 of the Adoption Act 1972 provides that an adoption shall not make arrangements of the adoption of a child or place a child for adoption, unless (a) the proposed adopter is a relative of the child and he is acting in pursuance of an order of the High Court.

 

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