Surrogacy and the Law
Surrogacy involves a number of different scenarios and it is a term used to describe when a woman agrees to carry and have a baby for another couple. Sometimes the surrogate will receive payment while other times they won’t. An agreement is made before a surrogate carries a child and it will clearly state that the baby is to be handed over once it has been born. It is very important however to distinguish the difference between surrogacy and what could be misconstrued as selling a child, which is an illegal activity. As a result, you should exercise extreme caution when entering into a surrogacy agreement to ensure that it cannot be viewed by the court as being illegal, particularly when the surrogacy involves payment. The only money that can change hands is to pay for expenses associated with the pregnancy.
Surrogacy Agreements Explained
If you have ever considered surrogacy, perhaps because you cannot safely carry children of your own, consideration ought to be given to the circumstances. Where there is a promise of payment for carrying the child, or there is a promise, it is important to understand the terms of the agreement. All parties involved should be fully aware of what agreement they are entering into.
There are many different types of surrogacy and it covers a situation when a surrogate mother will carry a baby on behalf of someone else. Artificial insemination will be carried out where an embryo is implanted into the surrogate mother. In this situation it is absolutely clear that the surrogate mother and the baby have no genetic connection. Where a partial surrogacy takes place, the surrogate mother is the genetic mother and the child is conceived through artificial insemination using the sperm of the father. This is when the situation becomes slightly more complex.
Surrogacy and Parenthood
For both of the above types of surrogacy, the law of England and Wales would recognise the surrogate mother as the legal mother of the baby. As a general rule, legal principles apply which state that the legal mother of a child is one who gives birth to a child, irrespective of their genetics. Moreover, as the surrogate is legally the mother of the child, she will have automatic parental responsibility as a result and can have a say on important decisions concerning the child. When it comes to the father, this is a more complicated situation. When the surrogate mother marries, there is an automatic assumption that the husband will be the father of the child. If the husband would confirm in writing that they did not give permission for the agreement, then the intended father can be named as the actual father on the registration of the child. If however, the surrogate mother is unmarried, the biological father will be assumed to be the legal father of the child and can be registered on the birth certificate.
Actually enforcing a surrogacy agreement has caused a number of problems for several years. In moral and legal terms forcing a woman to give up a child that she has carried and given birth to is a questionable matter. It is therefore very difficult to enforce a surrogacy agreement if the surrogate mother changes her mind.
After the Birth
In certain situations, a court may decide to grant a parental order that states when the child is born it will be treated as though it was a child from the marriage of two parents. In six weeks following the birth of the child but no later than six months, an application should be made by the parents who must be at least 18 years of age. The child’s home must be with them and either of the parents resident in the UK, Isle of Man or Channel Islands. The court must also be satisfied that the parties who are involved have acted in full understanding of what they were agreeing to. This will include the natural father of the child, whether married or not. Furthermore, the court must be satisfied that no benefit or money has been exchanged for the child or that this would indeed occur. Another alternative is if the child is adopted by a commissioning couple. This can occur when timescales have expired or the birth mother withdraws her approval of the agreement. When adoption is not a viable option, it may be possible to obtain a residence order. However, even if a residence order was granted, it would not remove parental responsibility from the surrogate.
Surrogacy is a complex area of law which is fraught with dangers and challenges. It is essential that before you decide to enter into such agreement either as a surrogate or a couple looking for a surrogate mother, you understand the implications and your rights in relation to the surrogacy agreement and most importantly you comply with surrogacy law.
About the Author
This article was written by a member of the Expert Answers team and posted by Lloyd Barrett, Admin & Customer Services Manager for online advice service Expert Answers. Expert Answers provides legal advice to users in the UK who post a question on their secure platform.