Blog by Dr Bianca Jackson, barrister at Coram Chambers
If you are reading this post, congratulations! The decision to start a family using a surrogate mother is an exciting one and it is fair to say that your life will never be the same again. Yet, it can also be overwhelming. There are so many practical steps to take – from finding a surrogate mother to identifying the clinic that best meets the needs of you and your family. It is therefore unsurprising that intending parents often overlook or put off the legal issues that need to be dealt with before your son or daughter is regarded as your child in the eyes of the law.
The following are the top 5 tips that I would give to intending parents who are embarking on a surrogacy arrangement:
The first tip is also the most important: you need to apply to the family court for a parental order once your child is born. If you do not do so, the surrogate mother will remain the legal mother of your child and if she is married or civilly partnered, her spouse or civil partner may be regarded as the legal second parent. You must do this regardless of whether you are biologically related to the child, whether the surrogacy arrangement took place at home or abroad, or whether you and your partner/spouse are listed as the parents on a foreign birth certificate. If you do not do so, you and your partner/spouse risk not having any legal rights or responsibilities for your child. This affects everything from making decisions about your child’s medical care and education to inheritance.
Commercial surrogacy (i.e. paying a surrogate mother to carry a child for you) is illegal in the United Kingdom. However, neither the intending parents nor the surrogate mother is guilty of an offence if they engage in a commercial surrogacy arrangement. This does have implications for the parental order: it is one of the criteria of the parental order that payment is not made to the surrogate mother beyond reasonable expenses. That being said, surrogate mothers – both domestic and abroad – regularly take payment for their services and the court has the ability to retroactively approve these payments so long as they are not “an affront to public policy.” What this means in practice is that the court regularly approves parental order applications where payments have been made; however, you will need to provide detailed evidence of what payments were made and what they were used for, as well as convincing the court why it should retroactively approve said payments.
Think carefully about whether you want your surrogacy to take place at home or abroad. There are pros and cons to each option. On one hand, it can be easier and significantly cheaper to use a domestic surrogate. However, the lack of regulated commercial surrogacy in the UK means that there can be a long waiting list for a surrogate. On the other hand, if you choose to use a surrogate abroad, there might be more surrogates available to choose from, but this can come at a higher cost (depending on the jurisdiction), involves immigration issues (including the need for you and/or your partner/spouse to remain abroad for a significant period of time), and can make it more difficult to obtain the information that you need for the application for the parental order. As the landscape of surrogacy is constantly shifting, going abroad also involves the risk of the surrogacy laws of that jurisdiction changing during the course of your surrogate’s pregnancy. For example, India used to have a 5 billion dollar surrogacy industry but subsequently outlawed foreign surrogacy arrangements. This had serious implications for intending parents who had already commenced their surrogacy journey in India.
Make sure you find out from the outset whether your surrogate mother is married or in a civil partnership. The marital/civil partnership status of the surrogate mother has implications for parenthood, as well as for who can be named on the child birth certificate. If your surrogate mother is single, either you or your partner/spouse can be named as the second parent on the birth certificate so long as certain criteria are met. Though both you and your partner/spouse will be named as the parents on the new birth certificate that is issued after the parental order is granted, having one of you listed on the original birth certificate can be important; for example, to pass down British citizenship and bring your child back into the jurisdiction if you use a foreign surrogate.
Finally, get legal advice at the earliest opportunity. There are a number of criteria that need to be met in order to obtain a parental order, from the timing of your application to getting consent from your surrogate on the stipulated legal forms. You will also need to prepare an application form and a witness statement, attaching evidence of how you meet said criteria. The earlier that you obtain advice, the less chance that you will fall foul of the rules and end up in a lengthy contested hearing in the High Court, which can be both stressful and costly. Moreover, an initial conference with a specialist barrister or solicitor can set you up with all of the information that you need to complete the application process yourself if cost is an issue.
Dr Jackson has written this blog for us ahead of a Pride in the City event held in partnership with London-based family law specialists Coram Chambers. For advice or assistance, please feel free to get in touch with Dr Jackson through her clerks: email@example.com