A quick guide to surrogacy law as it currently stands within England.

8027725497_4050f2e157_mIn furtherance of my blog both yesterday, entitled From Yorkshire to Los Angeles and back again in one blog post and on the 22nd of January, entitled ‘A seven month old baby boy and Surrogacy: Finances and the inconsistencies between policy and law’. I decided to complete a little more in depth research in regard to the current Surrogacy laws in England, which appear to be somewhat of a hot topic at the moment.

The UK Government webpage gives a quick guide as to the rights for surrogate mothers and includes the following information. ‘Surrogates are the legal mother of any child they carry, unless they sign a parental order after they give birth transferring their rights to the intended parents.’ ‘The woman who gives birth is always treated as the legal mother and has the right to keep the child – even if they’re not genetically related. Surrogacy contracts aren’t enforced by UK law, even if a contact has been signed with the intended parents and they’ve paid for any expenses.’ This is obviously extremely controversial with surrogate mothers having the ability to keep the babies they give birth to regardless of the fact that the child may be the genetic child of the intended mother. This results in issues like the one reported by the Daily Mail in their article entitled ‘Surrogate mother says ‘Sorry, but I am keeping your babies.’’. So what about the father’s rights? The government states that ‘the child’s legal father or ‘second parent’ is the surrogate’s husband of civil partner unless legal rights are given to someone else through a parental order or adoption or the surrogate’s husband or civil partner did not give their permission to their wife or partner.’ Thus it would appear that the intended father, who could also be the genetic father of the child, is left in the same position as that of the intended mother. Further the government states that ‘if a surrogate mother has no partner, or they’re unmarried and not in a civil partnership, the child will have no legal father or second parent unless the partner actively gives consent’.

It is illegal in the UK to pay a surrogate beyond the reasonable expenses incurred by the surrogate mother in relation to her pregnancy. The Surrogate also has a right to 52 weeks’ maternity leave and to return to their job after this.

Surrogacy law within the UK has not changed much since the implementation of the Surrogacy Act 1985. Thus Surrogacy law could be considered somewhat outdated and fragmented. Bianca Jackson in her article entitled Surrogacy: A Guide to the Current Law (Part 1) states that surrogacy law is full of contradictions such as the fact that ‘commercial surrogacy is prohibited, but the courts can authorize payments to the surrogate mother; third party non-profit surrogacy organizations can receive remuneration for some services, but not for others. There is no comprehensive legal approach to surrogacy or even consensus about what such an approach would look like. As such, surrogacy law remains a source of confusion to both practitioners and those who engage in surrogacy practices.’

Bianca goes on to explain that, according to the Surrogacy Act, ‘Surrogacy arrangements are not illegal if they are altruistic (i.e. the surrogate mother does not receive payment for carrying the commissioned child). Commercial arrangements for surrogacy are prohibited [s.2(1)]. However, the commissioning parents and/or the surrogate mother are not guilty of an offence if payment beyond reasonable expenses is made [s.2(2)]- though if payment is made, this may have ramifications for the outcome of the application for a parental order. Regardless of whether payment is made to the surrogate mother or not, all surrogacy arrangements are unenforceable [s.1A – inserted by Human Fertilisation and Embryology Act 1990]. It is a criminal offence for a person to advertise that they are looking for a surrogate mother or are willing to act as a surrogate mother [s.3(1)(a)] and the penalty for doing so is a fine and/or up to three months imprisonment [s.4(1)].’ Further in relation to professional bodies, ‘It is a criminal offence for any third party (whether an individual or a professional body) to broker surrogacy agreements between a surrogate mother and commissioning parents for commercial purposes, i.e. for payment [s.2]. It is also a criminal offence for third parties to advertise their willingness to broker a surrogacy arrangement [s.3(1)(a)], as well as for newspapers or periodicals to carry said advertisements [s.3(2)]. The penalty for any of the above offences is a fine and/or up to three months imprisonment [s.4(1)].’

The Human Fertilisation and Embryology Act 1990 and 2008 both further add to the Surrogacy Act. The Human Fertilisation and Embryology Acts above regulate what can and cannot be done with embryo’s and gametes. Bianca goes on to explain the intricacies of the above Act in relation to the legal definitions of parentage and the transfer of parental responsibility and legal parenthood, which make for interesting reading.

Of further relevance in the area is the Human Fertilisation and Embryology (Parental Orders) Regulation 2010 which inserted s.1 of the Adoption and Children Act 2002 into s.54 of the HFEA 2008. Part 13 of the Family Procedure Rules 2010 also offers integral guidance on s.54 of the HFEA 2008. Links to all of the above acts, regulations and articles can be found below.

Obviously the above is a simplified summary of current surrogacy laws and anyone wishing to take part in the surrogacy process should visit the Human Fertilisation & Embryology Authority’s website which is listed below and contact a lawyer with specialist knowledge of surrogacy law.

Further information on surrogacy and support throughout the surrogacy process can be found via the links below:

Surrogacy Act 1985: http://www.legislation.gov.uk/ukpga/1985/49

The Human Fertilisation and Embryology Act 1990: http://www.legislation.gov.uk/ukpga/1990/37/contents

The Human Fertilisation and Embryology Act 2008: http://www.legislation.gov.uk/ukpga/2008/22/contents

Human Fertilisation and Embryology (Parental Orders) Regulation 2010: http://www.legislation.gov.uk/uksi/2010/985/contents/made.

Adoption and Children Act 2002: http://www.legislation.gov.uk/ukpga/2002/38/section/1Surrogacy Act 1985: http://www.legislation.gov.uk/ukpga/1985/49

Part 13 of the Family Procedure Rules 2010: http://www.justice.gov.uk/courts/procedure-rules/family/parts/part_13

‘From Yorkshire to Los Angeles and back again in one blog post’: http://www.stowefamilylawllp.com/2014/01/29/from-yorkshire-to-los-angeles-and-back-again-in-one-blog-post/

‘A seven month old baby boy and Surrogacy: Finances and the inconsistencies between policy and law’: http://www.stowefamilylawllp.com/2014/01/22/a-seven-month-old-baby-boy-and-surrogacy-finances-and-the-inconsistencies-between-policy-and-law/

Bianca Jackson’s article entitled Surrogacy: A Guide to the Current Law (Part 1): http://www.familylawweek.co.uk/site.aspx?i=ed127038

Surrogacy UK, Common Questions Answered: http://www.surrogacyuk.org/intended_parents/your-questions-answered

Human Fertilisation & Embryology Authority: http://www.hfea.gov.uk/fertility-treatment-options-surrogacy.html

Daily Mail article entitled ‘Surrogate mother says ‘Sorry, but I am keeping your babies.’’: http://www.dailymail.co.uk/femail/article-423125/Surrogate-mother-says-Sorry-Im-keeping-babies.html

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