Surrogacy is an increasingly popular way for individuals and couples to build their families when natural conception or traditional alternatives are not viable. Whether it’s due to medical conditions, same-sex relationships, or fertility challenges, surrogacy provides a path to parenthood for many. However, the legal framework surrounding surrogacy in England & Wales is complex, reflecting the need to balance the rights and responsibilities of all parties involved, especially those of the surrogate and the intended parents. Navigating these legal complexities is crucial for ensuring a smooth surrogacy journey and avoiding potential pitfalls.
Below, we delve into the legal landscape of surrogacy in England & Wales, providing comprehensive guidance for intended parents.
Understanding the Current Legal Framework
Surrogacy in England & Wales is governed by the Surrogacy Arrangements Act 1985 and subsequent amendments, including provisions outlined in the Human Fertilisation and Embryology Act 1990 and 2008. These laws aim to regulate surrogacy arrangements and provide legal clarity on issues of parenthood. Unlike some other countries, commercial surrogacy is prohibited in England & Wales, and surrogacy agreements are not legally enforceable.
This means that while surrogacy arrangements are permitted on an altruistic basis, intended parents and surrogates must exercise caution and mutual trust throughout the process. The surrogate holds significant legal standing until intended parents acquire full parental rights through a formal process.
Legal Status of the Surrogate
Under the laws of England & Wales, the surrogate is considered the child’s legal mother upon birth, regardless of whether the child shares her genetic material. This legal principle holds even if the surrogate used the intended mother’s egg or a donor egg as part of the fertility process.
Should the surrogate be married or in a civil partnership at the time of the child’s birth, her spouse or civil partner is also presumed to be the child’s second legal parent unless they explicitly opt out of this designation. As such, intended parents should be aware that the surrogate and—where applicable—her partner are the default legal parents until legal measures are taken to transfer parenthood.
Acquiring Parental Rights: Parental Orders
For intended parents to be legally recognised as the child’s parents, they must apply for a parental order. This is a court order that transfers parenthood from the surrogate to the intended parents. A parental order is critical as it confers legal status and parental responsibility, ensuring that the intended parents can make decisions regarding the upbringing of the child.
To apply for a parental order in England & Wales, certain conditions need to be met:
– The child must be biologically related to at least one of the intended parents.
– The application must be made within six months of the child’s birth.
– The intended parents must meet specific marital or partnership criteria (e.g., they must be married, in a civil partnership, or living together in an enduring family relationship).
– The surrogate must freely and fully consent to the parental order. Importantly, this consent can only be given after the child is six weeks old.
– No payment beyond reasonable expenses should have been made to the surrogate, as commercial surrogacy is prohibited.
The court’s primary concern during this process is the welfare of the child. Once a parental order is granted, the intended parents will be recorded as the child’s legal parents on the child’s birth certificate.
Navigating Surrogacy Agreements
Although surrogacy arrangements are not legally enforceable in England & Wales, having a written agreement is still highly recommended. A surrogacy agreement allows both the surrogate and the intended parents to clearly articulate their expectations, responsibilities, and intentions. This document can help foster mutual understanding and resolve potential misunderstandings during the process.
A typical surrogacy agreement might outline details such as the surrogate’s role during pregnancy, the intended parents’ involvement, the handling of medical appointments, post-birth arrangements, and reimbursement of the surrogate’s reasonable expenses. It is important to note that while this document holds moral weight, it does not prevent a surrogate from changing her mind or refusing consent to a parental order.
The Role of Surrogacy Agencies
Many intended parents turn to surrogacy agencies for guidance and support. These agencies often serve as intermediaries, matching intended parents with suitable surrogates and facilitating the agreement process. In England & Wales, surrogacy agencies cannot operate commercially but may provide services on a non-profit basis.
Working with a professional organisation can be particularly helpful in navigating the social, psychological, and legal aspects of surrogacy. Agencies are also well-versed in vetting potential matches to ensure compatibility and shared expectations between surrogates and intended parents.
Costs Involved in the Surrogacy Process
While commercial benefits for surrogates are prohibited, intended parents are allowed to cover the surrogate’s reasonable expenses. These expenses may include a range of pregnancy-related costs such as medical care, maternity clothing, and travel to appointments. What qualifies as “reasonable” is not strictly defined in law, leaving room for interpretation.
It is important for intended parents to openly discuss these expenses with the surrogate and clearly document agreed-upon terms. This transparency helps maintain trust throughout the process. In cases where the agreed-upon expenses are disputed or seem excessive, the court will scrutinise the payments when considering a parental order application.
International Surrogacy Considerations
Some intended parents choose to pursue international surrogacy arrangements in countries where commercial surrogacy is allowed or where the legal framework is more favourable to intended parents. While this may appear to simplify certain aspects of the process, it introduces another layer of complexity, especially when it comes to recognising parenthood under UK law.
When a child is born through surrogacy abroad, the intended parents still need to acquire parental responsibility under the law of England & Wales via a parental order. Additionally, immigration and nationality issues may complicate the process further, requiring the intended parents to secure the child’s right to enter and reside in the country.
To avoid legal complications, it’s advisable for prospective parents to consult solicitors with expertise in both domestic and international surrogacy before proceeding.
Ethical and Emotional Considerations
Surrogacy involves deeply personal and emotional decisions for all parties. The surrogate is agreeing to carry a child for someone else, which requires not only physical commitment but also significant emotional resilience. Similarly, intended parents must place a great deal of trust in the surrogate while managing the natural anticipation and anxiety associated with becoming parents.
For these reasons, counselling is often advisable for both surrogates and intended parents. Surrogacy agencies and fertility clinics usually offer access to counselling services as part of their support package. Counselling can help all parties prepare for the journey, manage expectations, and navigate the emotional highs and lows associated with surrogacy.
Proposed Changes to Surrogacy Law
The surrogacy laws in England & Wales are often criticised for being outdated and not reflective of modern family dynamics. Calls for reform have gained momentum, driven by increasing demand for surrogacy and advancements in reproductive technology. In response, the Law Commission published a consultation paper proposing changes to simplify and modernise the legal framework.
Key proposals include creating a new pathway that automatically transfers parental rights to the intended parents at birth, provided specific preconditions are met. These reforms seek to offer greater legal certainty while continuing to protect the surrogate’s autonomy. Although these proposed changes have not yet been implemented, they could significantly alter the surrogacy landscape in the coming years.
Conclusion
The legal process surrounding surrogacy in England & Wales requires careful planning, mutual understanding, and professional guidance. While the current laws give primacy to the surrogate’s legal status at birth, acquiring a parental order ensures that intended parents can assume full legal responsibility for their child.
Understanding the nuances of surrogacy law is vital for anyone considering this path to parenthood. It’s equally important to seek legal advice at the earliest opportunity and work with reputable professionals, such as surrogacy agencies, fertility clinics, and legal experts. With the right preparation and support, surrogacy can be an incredibly rewarding journey for both intended parents and surrogates.
By approaching the process with knowledge, openness, and compassion, intended parents in England & Wales can step confidently into their role as legal guardians and embrace the joys of parenthood through this unique and life-changing pathway.