Although our family team at Bishop & Sewell specialise in Surrogacy matters, fortunately cases where the surrogate mother changes her mind and wishes to keep the baby are few and far between.
In England and Wales once a woman gives birth to a child, she is regarded as the legal mother, regardless of the genetic makeup of the embryo. As Surrogacy Agreements are effectively “unenforceable” in the UK, a large proportion of these arrangements rely on trust. Furthermore, we do not have “pre-birth” orders which are available in other jurisdictions such as some states in America. Intended Parents in England and Wales therefore must wait 6 weeks after the child’s birth to apply to court to transfer the legal parentage from the surrogate mother to them.
A recent case which was reported in the tabloids at the weekend highlighted the precarious nature of such arrangements. A same-sex couple Steve and Marc Winchester-Horscrafts entered into an agreement with a surrogate based in the UK who gave birth to twin girls using Steve’s sperm. The couple already had a 5-year-old son born through surrogacy. The couple’s dream became a living nightmare when the surrogate later denied the intended fathers’ access to the children following a dispute about expenses. The couple ended up spending tens of thousands of pounds in legal costs in a bitter legal battle in the High Court to be recognised as the legal parents of their daughters.
Surrogacy Law UK
As the current law stands “compensated surrogacy” is not legal in England and Wales. Intended Parents are therefore only able to pay for a surrogate’s reasonable expenses incurred during the surrogacy process, such as medical bills, loss of earnings and maternity clothes. Many Intended Parents find it difficult to locate a UK based surrogate who is willing to carry their baby for purely altruistic reasons and therefore many of our clients tend to enter into commercial surrogacy arrangements overseas, where compensated or commercial surrogacy is legal, such as the United States or the Ukraine.
The law surrounding surrogacy was written in the 1980s and is in dire need of reform, the Law Commission have made various proposals over the last few years. The Law Commissions are proposing to allow intended parents to become legal parents when the child is born, subject to the surrogate retaining a right to object for a short period after the birth.
Fortunately, cases involving the typical “soap opera” storyline where the surrogate mother changes her mind are relatively rare and the majority of cases that Bishop & Sewell assist with are extremely happy and rewarding. Nevertheless, we vehemently welcome any law reform that government finally finds time to implement, post Brexit which will assist our clients in a more streamline approach to being recognised as the legal parents of their children born through surrogacy.
For initial legal advice or to arrange a meeting with one of our expert Forming Families team, please email firstname.lastname@example.org or contact 020 7631 4141 and ask to speak to our Forming Families team.
Important: Please be aware that Bishop and Sewell is not a Surrogacy Agent nor are we able to facilitate surrogacy arrangements for would-be parents or surrogate mothers.