Surrogacy, Adoption, Fertility and Modern Family Solicitors

Surrogacy is the process whereby a woman carries and gives birth to a baby on behalf of someone else.

There are two types of surrogacy:

Straight/traditional surrogacy – where the surrogate is both the genetic mother as well as the woman who carries and gives birth to the child; and

Gestational surrogacy – where the surrogate has no genetic affiliation to the child and conception occurs when the embryo planted in her uterus is one created with the egg of another woman (either from the intended mother or a donor egg) and sperm (from the intended father or donor sperm). In this scenario, the embryo is created from the gametes of at least one of the intended parents.

Heterosexual, same-sex couples and single individuals are eligible to enter into a surrogacy arrangement.

IS SURROGACY LEGAL IN THE UK?

It is illegal to enter into a commercial surrogacy arrangement, but both altruistic and compensatory arrangements are legal. The advertising and negotiating of a surrogacy arrangement is banned unless undertaken by a not for profit agency.

It is permissible to reimburse surrogates for reasonable expenses arising out of the pregnancy and retrospective authorisation for these expenses is sought at Court.

ARE SURROGACY CONTRACTS ENFORCEABLE IN THE UK?

In England and Wales, surrogacy contracts are not enforceable by the Courts. Irrespective of any contact between the intended parents and the surrogate, in England and Wales, the surrogate is the legal mother of the child she delivers, even if she is not genetically related to the child and parenthood will only be conferred on the intended parents once a Parental Order is granted.

Although surrogacy contracts are not legally enforceable in this jurisdiction, parties often enter into a surrogacy agreement, to record the parties’ decisions on key issues and provide clarity. Whilst English lawyers cannot prepare or advise upon surrogacy agreements, we can advise on the legal implications, under English law, of entering into surrogacy agreements.

A surrogate cannot ‘surrender’ legal parenthood. There must be a Parental Order to alter the legal parenthood of the child.

Under UK law, the woman who carries and gives birth is the legal mother of that child, even if she has no genetic affiliation to it. Thus, until the intended parents obtain a Parental Order pursuant to s54 (or s54A) Human Fertilisation and Embryology Act 2008, the surrogate remains the legal mother of the child.

If the surrogate is married, her husband is generally the legal father and likewise the surrogate’s wife or civil partner is the other legal parent if she is in a same-sex relationship.  If the surrogate is not married, the intended father will usually be the legal father if he is the biological father.  However, if conception takes place at a fertility clinic in the UK, another adult can nominate a second legal parent, e.g., the intended mother or a non-biological father.

If the child is born in England or Wales, the surrogate as the legal mother of the child, and she will be named on the birth certificate as the mother, together with her spouse/ civil partner if they are the other legal parent.  If the surrogate is not married or in a civil partnership, then one of the intended parents may be registered as the father or second parent, so long as they attend in person for the birth registration.  If that intended parent is not the biological father, he/she will need to produce the HFEA forms signed to nominate him/her as a parent.

A Parental Order is a court order that grants legal parenthood to the intended parent or parents of the surrogate born child and permanently extinguishes the legal parenthood of the surrogate, and her spouse if she has one. The surrogate and her spouse must consent to the granting of a Parental Order.

Upon the granting of a Parental Order, the birth will be re-registered at the Registry Office and a new birth certificate will be issued naming the intended parent(s) as the legal parent(s) of the child.

The intended parent(s) must satisfy the family court that the granting of a Parental Order is in the child’s best interests. The child’s welfare is the court’s paramount consideration. In order for intended parent(s) to be eligible to apply for a Parental Order, they must fulfil the criteria below:

• The child has been carried by a surrogate as a result of embryo transfer or artificial insemination;
• The intended parent must be the child’s biological parent or if they are a couple, at least one of them must be biologically related to the child;
• If the intended parents are applying as a couple, they must be married, civil partners or living together as partners in an enduring family relationship. Single parents are now also eligible to apply;
• The intended parent(s) must apply for a Parental Order within six months of the child’s birth and although the court may extend this period in exceptional circumstances, do not rely upon this;
• At the time of the application and the date the order is granted, the child’s home must be with the intended parent(s).
• At the date they apply and the date of the order, the intended parent (or if applying as a couple, at least one of them) must be domiciled in the UK, Channel Islands or Isle of Man;
• The intended parent(s )must be over 18 when the order is granted;
• The surrogate and her spouse must freely consent to the making of a Parental Order (unless they cannot be found or are incapable of giving consent).  The surrogate cannot consent to the making of a Parental Order until six weeks and a day after the birth of the child (consent given prior to this period is not deemed to be valid); and
• The court must be satisfied that the intended parent(s) did not pay the surrogate (other than for reasonable expenses). Any payments over and above reasonable expenses will be retrospectively authorised by the court.

The intended parent(s) make an application to the Court for a Parental Order. CAFCASS would appoint a Parental Order Reporter, who will carry our welfare checks and provide a report for the Court. The intended parent(s) would have to file a written statement. We can assist with the preparation of this application, written statement and the process generally. There will be at least one court hearing in the Family Court, following which the court would make a Parental Order.

A Parental Order confers legal parenthood on the intended parents under UK law and extinguishes the parental rights of the surrogate (and any spouse). Without a Parental Order, one or both of the intended parents will not be able to exercise parental responsibility and make fundamental decisions concerning their child’s health, welfare and education or obtain essential travel documents. The child may also not be recognised for the purposes of inheritance and succession planning. It is advisable to obtain a specialist Will when having a baby via surrogacy.

While UK surrogacy laws are currently under government review, it remains illegal here to enter into a commercial surrogacy agreement with a surrogate. Surrogacy itself is not illegal in the UK but only reasonable expenses can be paid and no contract between the parties will be recognised in the courts, meaning the arrangement is not enforceable.

In this jurisdiction, the wait to match with a surrogate can be long. Intended parents – single sex, heterosexual couples and single individuals – therefore tend to look abroad to places such as some surrogacy friendly destinations within the United States where commercial surrogacy is legal and well-regulated, protecting all parties.

Straight, or traditional surrogacy is where the surrogate is both the genetic mother as well as the woman who carries the child. The pregnancy is achieved either through artificial or natural insemination or IVF to create the embryo using the surrogate’s eggs and the sperm of one of the intended parents which is then implanted into the surrogate.

Gestational surrogacy is by far the most common arrangement and involves using either the intended mother’s egg or a donated egg, but not an egg from the surrogate. The sperm is either from the intended father or from a donor but there must be a genetic link to one of the intended parents so you cannot use both a donor egg and donor sperm. Although the surrogate will not be biologically related to the child, UK law determines that she retains legal responsibility for that child until it is transferred to the intended parent(s) via a Parental Order.

Most intended individuals will use a reputable agency overseas that connects intended parents with suitable surrogates. Both parties ‘choose’ the other and some develop relationships that continue after the birth, while for others that relationship ends at the birth.

The matching agency will work alongside your foreign fertility lawyer to ensure all the necessary paperwork is in place and most offer emotional and practical support to both parties as well as handling payments and fees. Your UK lawyer will also work with his/her foreign counterpart to protect your interests.

The benefit for UK domiciled intended parents entering into a commercial agreement with a surrogate in some states in the US is that all parties should have the benefit of US independent legal advice and US Parentage Orders can be granted within a short space of time, and sometimes pre-birth. However, as overseas Parentage Orders (and foreign birth certificates) are not recognised by the UK courts, intended parents will need to bring an application for a UK Parental Order so that they can extinguish the parental rights of the surrogate and secure their own legal parenthood in respect of the child.

The surrogate must consent to the making of a Parental Order, and in the absence of this, and with good reason, the Court can be asked to proceed without this consent.

Intended parents must work with the relevant immigration authorities to ensure that there are no difficulties in leaving the surrogacy destination with the child and entering the UK.

The law states that intended parents must apply for a Parental Order within 6 months of the child’s birth.  Although it has been known for the courts to exercise discretion to allow later applications, this should not be relied upon.

As is clear, surrogacy law is complicated and intended parents should always instruct a lawyer before entering into any agreement overseas. The lawyer will offer advice on the law and be able to assist you once the surrogacy arrangement is in place.

Once the child is born and back in the UK with the intended parents, it is important to ensure that there is no delay in applying for the Parental Order. This application cannot be made in the first six weeks (as the surrogate’s consent will not be deemed to be valid) and at least one of the intended parents must be domiciled in the UK.

Until the Parental Order is obtained the surrogate is still, under UK law, deemed to be the legal parent of the child, so decisions regarding the child, such as medical treatment, under law will require the surrogate’s consent until her rights are extinguished under a Parental Order.

Following the Law Commission’s review of our domestic outdated surrogacy laws in their 13th Programme of Law Reform, a wholesale programme of reform has been proposed and a draft bill is awaiting debate in Parliament.

A declaration of parentage can be made in respect of whether a named person is/was the parent of another named person. These can be used following errors in UK fertility clinics, following disputes about an individual’s parentage, including following conception arrangements, and by adopted individuals in respect of their birth parents.

We can assist as follows:

• We can advise on an application for a declaration of parentage, including to resolve the legal parentage of a child;
• We can assist with the evidencing and documenting of consent or lack of consent in UK fertility treatments; and
• We can advise on the legal consequences of the procuring, storage and use of gametes (and donor gametes) in assisted conception, including issues following the death of the donor.
• We can prepare co-parenting agreements, following the breakdown in a relationship between the parents, or in instances of donor conception.

Adoption is the legal process by which a child becomes a permanent member of a new family.

An adoption order is an order giving parental responsibility for a child to the adopters, made on their application to the court. This order will also simultaneously extinguish the parental responsibility that any person had for the child immediately prior to the making of the order. The making of an adoption order also extinguishes any ‘family life’ rights under ECHR, Art 8 that may have existed between a child and his/her natural parents.

Upon the making of an adoption order, the child will be seen as the legitimate child of the adopter(s), as if he/she had been born to the adoptive couple or sole adopter.

The child’s welfare is the court’s paramount consideration when considering the making of an adoption order.

An application for an adoption order can only be made in relation to a person who is under 18 years old at the date of the application. There is no statutory condition concerning the child’s residence, nationality or domicile.

A heterosexual or same-sex couple or sole individual can adopt a child.

There are no limitations on applications for adoption by relatives or step-parents, but special considerations may be given to the impact upon the family if an adoption order was made.

For a couple to adopt, and in circumstances where neither is the natural parent, they must meet the following criteria:

• Each of the applicant couple must have attained 21 years, except where one is the mother or father of the child;
• At least one of the couple must be domiciled in the British Isles or both of the couple have been habitually resident in a part of the British Isles for a period of not less than one year ending with the date of the application; and
• The applicants must be married, in a civil partnership or in an enduring family relationship.

The natural father or mother may make a joint application with his/her spouse or partner to adopt his/her own child. Here the age requirement for the natural parent lowers to 18, not 21 years of age.

A single applicant can adopt a child upon meeting the following criteria:

• He/she must be domiciled in the British Islands or he/she has been habitually resident in the British Islands for a period of not less than one year ending with the date of the application;
• He/she has attained 21 years of age;
• He/she is unmarried (or if married and in a civil partnership the court is satisfied that the relationship is no longer existing or his spouse/civil partner is unable to make an application for an order).

Before an adoption process can begin, the proposed adopters must contact social services, notify them of their intention to adopt (either in the UK or from overseas) and undergo a comprehensive assessment process to determine if they are suitable to adopt. Once proposed adopters are approved, a social worker will assist them in finding a child.

Inter-country adoption is the adoption of a child who is habitually resident in one country by an individual or a couple who are habitually resident in another country. For those residents in England and Wales, inter-country adoptions are subject to the Adoption and Children Act 2002 and the Adoptions with a Foreign Element Regulations 2005. Some countries are subject to further adoption restrictions. It is a highly technical area of law involving complex regulatory and immigration issues so you should seek specialist advice.

There are three types of inter-country adoption:

• A Convention adoption: where the child and the adopters are habitually resident in different countries, both of which are contracting States to 1993 Hague Convention. The Convention is an international agreement designed to establish safeguards to protect the best interests of the child and to prevent child trafficking. A full adoption effected under the Hague Convention will be recognised automatically as a valid adoption in England and Wales. British citizenship for the child will automatically follow, if at least one of the prospective adopters is British and habitually resident in Britain;
• A Designated List adoption: adoptions in countries listed in the Adoption (Designation of Overseas Adoptions) Order 1973 are recognised in UK law. However, unlike with a Hague Convention adoption, British citizenship for the child is not automatic.
• Other adoptions: for adoptions not falling into the categories above, you will need specialist advice. You might need to apply for adoption in the destination jurisdiction as well as in the UK. Here the child will have to apply for British citizenship.

You will need to contact an authorised UK adoption agency and ask to be formally assessed.

You will undergo a comprehensive Home Study Assessment with an allocated social worker over many months. An adoption panel will then consider the findings of the assessment. If you are successful, your application will be sent to the UK’s Central Authority (the Department for Education), and they will issue you with a Certificate of Eligibility to adopt which is translated, notarised and sent to the authorities in the country from which you would like to adopt. There is a fee for processing this application. The process of matching with a child varies significantly from one country to another so you will need to take specialist adoption and immigration advice.

We can advise clients on the process to obtain a Gender Recognition Certificate (GRC), under the Gender Recognition Act 2004, to recognise their acquired gender.

We can also advise on the legal consequences of fertility treatments, due to any infertility following gender-affirming treatment or in relation to fertility preservation, for example, freezing sperm or eggs, or embryo freezing. Transgender individuals may also wish to explore surrogacy for family building, upon which we can advise.