Bishop & Sewell

The case of Seraphina Harrell, a little girl in America whose surrogate mother refused to give her up for adoption, has reawakened the discussion about surrogacy laws here in the UK.

Sadly Seraphina has recently died, a few weeks before her eighth birthday. In 2012 half way through her pregnancy Crystal Kelley, her surrogate mother, had an ultrasound scan which showed the baby had multiple birth defects. The couple who wanted the baby offered Kelley $10,000 according to this week’s report on CNN to have an abortion, which she declined.

The subsequent dispute between the surrogate mother and the couple who were waiting for her baby then became an international story. Here in the UK the parent or parents for whom the child is intended are called ‘the commissioning, intended or social parents’.

Surrogacy is an increasingly common way for couples who struggle to have children to complete their families. The number of Parental Orders – the mechanism that transfers legal parenthood from the surrogate to the parents – increased from 63 in 2008/9 to 281 in 20017/18, according to the latest statistics quoted by Surrogacy UK.

Commercial surrogacy is illegal in the UK, under the Surrogacy Arrangements Act 1985. The Act makes it a criminal offence, on a commercial basis (i.e. when payment is made), to:

  • Initiate a surrogacy arrangement
  • Offer or agree to negotiate a surrogacy arrangement, or
  • Compile information to use in making or negotiating surrogacy arrangements.

Certain advertisements about surrogacy are also illegal, namely those indicating:

  • a person is willing to enter into a surrogacy arrangement, and
  • a person is looking for a woman willing to become a surrogate mother.

Surrogacy other than on a commercial basis (i.e. when no payment is made) is legal in the UK. It’s a subject we will expand on in subsequent articles.

Who are the legal parents of a surrogate child?

At birth, the woman who carried the child is always the legal mother, even if there is no genetic relationship (as in host surrogacy).

The child’s legal father or second parent will usually be the surrogate’s husband, wife, civil partner or cohabitant. If treatment was undertaken in a licensed clinic, and the surrogate has no partner, the child will have no legal father or second parent.

The commissioning parents may become the child’s legal parents by applying to the court for a Parental Order. Unless they do, they will not be the child’s legal parents, even if either or both of them are genetically related to the child.

There are two general models of surrogacy arrangement:

  • Using the egg of the surrogate mother and the sperm of the commissioning father – sometimes called traditional, partial or straight surrogacy, and
  • Using the egg of the commissioning mother (or else of a donor) combined with the sperm of the commissioning father (or donor sperm) – sometimes called gestational, full or host surrogacy.

Traditional surrogacy may be carried out at an IVF clinic, or by artificial insemination at home. A child born through traditional surrogacy will be biologically related to the commissioning father. An IVF clinic is always required for host surrogacy. A child born through host surrogacy will not be biologically related to the surrogate mother.

If you would like to have an initial discussion about surrogacy arrangements please contact me at Bishop and Sewell on email or by telephone 020 7091 2707.

Our Team

Our Family lawyers have the knowledge and experience to guide you through these challenging times and have rankings in both Chambers & Partners and the Legal 500 for their expertise.

The above is accurate as at 06 August 2020. The information above may be subject to change during these ever-changing times.

The content of this note should not be considered legal advice and each matter should be considered on a case by case basis.

Category: News | Date: 6th Aug 2020

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