UK: Surrogacy Law – In The UK And Abroad

Last Updated: 19 May 2015
Article by Emily Kozien-Colyer

Surrogacy has become increasingly common in recent years and though it is hard to establish statistics there are reportedly 1,500 children born to UK parents in overseas jurisdictions each year.

If a surrogate receives compensation beyond reimbursement of medical and other reasonable expenses, the arrangement is considered to be commercial rather than altruistic. Some countries, including France, Germany, Italy, Spain, Portugal and Bulgaria, prohibit all forms of surrogacy. In others, including the UK, Ireland, Denmark and Belgium commercial surrogacy is prohibited whereas altruistic surrogacy is allowed.

Commercial surrogacy is carefully regulated and controlled in many US states while in the remainder it does not have legal recognition. Perhaps most importantly for prospective parents, agreements reached with the surrogate pre-birth are enforceable in those states where it is permitted. In terms of dealing with the issue of parentage, legal provisions can vary from state to state, and will either proceed by way of a pre-birth order or post-birth parentage or adoption orders.

There are no international conventions, treaties or reciprocal arrangements currently in force which govern surrogacy, so any orders made abroad are not recognised in the UK. Under UK law the surrogate, and her husband if she is married, will remain the child's legal parents despite the intentions of the parties and any US order to the contrary. As such, parents must still apply separately for a parental order in the UK court.

The UK's position on surrogacy is regulated by the Human Fertilization and Embryology Act 2008. There are many problematic aspects to the requirements of this statute including, a time limit of 6 months in making an application for a Parental Order, the requirement that one or more of the parents is domiciled in the UK, and the currently nebulous definition of what amounts to reasonably incurred expenses.

In addition, surrogacy cases can sometimes encounter difficulties with legal provisions regarding adoption. For example, the US states of Iowa and Minnesota deal with the issue of parentage in surrogacy cases by way of post-birth parentage or adoption orders. However, parents then looking to make an application for a parental order in the UK have found that they are technically in breach of UK law, it being a criminal offence for a person who is habitually resident in the UK to have adopted a child overseas without complying with UK regulations.

As a result, applicants need to seek legal advice in order to guide them through the technical maze of surrogacy law.

Current news: the case of H v S

A story which has been heavily featured in the press this month is H v S (Surrogacy Agreement). This was a traditional, rather than gestational, surrogacy in that the surrogate, S, was also the biological mother. H, the biological father, was in a same-sex relationship with a long-term partner, B. H and S had been friends for many years; H claimed that S had agreed to be a surrogate and that H and B would co-parent the child, with S continuing to play a role. S denied the existence of a surrogacy agreement and claimed that she had entered into an agreement with H, to the exclusion of B, that H would be in effect a sperm donor and that she would take on the role of the child's parent and primary carer.

The court considered applications and cross-applications for residence and contact, now known as Child Arrangement Orders. As such, the court's primary consideration was the welfare of the child concerned. This meant that the court was obliged to consider and apply what is known as the welfare checklist, set out in section 1 of the Children's Act 1989. The applicable law was that of any private family dispute, rather than surrogacy law, and the judge specifically stated:

"It is not the function of this court to decide on the nature of the agreement between H, B and S and then either enforce it or put it in place. It is the function of the court to decide what best serves the interests and welfare of this child throughout her childhood".

The child was born in January 2014 and the final hearing took place over 6 days in January and February 2015, with multiple interim hearings in the intervening period, the involvement of CAFCASS and the appointment of a guardian to represent the child in the proceedings. Finally, the court ordered that the child should reside with H and B, both of whom had been granted parental responsibility, and to have contact with S.

The case highlights the extremely difficult consequences of the current legal framework regarding surrogacy in the UK. Legislation relating to surrogacy did not apply as S did not consent to the making of a Parental Order, and denied that she had agreed to be a surrogate. While S's actions in relation to the disputed agreement were considered the court was obliged to do so solely in terms of how this reflected on S's ability to put the needs of her child first, and also in relation to the child's welfare.

It proved to be simply fortunate that the terms of the final order coincided with the reality of the child's conception and would accord with her identity and place within her family. Arguably, if S had conducted herself differently both in court and during the time following the birth, the final order may have resulted in the child living with her mother, having contact with her biological father and with no legally defined relationship with her father's partner. The fundamental disparities between these scenarios are very stark.

Comment

It is becoming increasingly clear that the legal framework in relation to both domestic and international surrogacy arrangements is in need of reform. Doing so may strengthen, rather than weaken, the current law's intention to protect the surrogate mother. Importantly, it will also ensure preservation of the child's welfare by guaranteeing immediate identity rights and protection.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

To print this article, all you need is to be registered on Mondaq.com.

Click to Login as an existing user or Register so you can print this article.

Authors
 
In association with
Up-coming Events Search
Tools
Print
Font Size:
Translation
Channels
Mondaq on Twitter
 
Register for Access and our Free Biweekly Alert for
This service is completely free. Access 250,000 archived articles from 100+ countries and get a personalised email twice a week covering developments (and yes, our lawyers like to think you’ve read our Disclaimer).
 
Email Address
Company Name
Password
Confirm Password
Position
Mondaq Topics -- Select your Interests
 Accounting
 Anti-trust
 Commercial
 Compliance
 Consumer
 Criminal
 Employment
 Energy
 Environment
 Family
 Finance
 Government
 Healthcare
 Immigration
 Insolvency
 Insurance
 International
 IP
 Law Performance
 Law Practice
 Litigation
 Media & IT
 Privacy
 Real Estate
 Strategy
 Tax
 Technology
 Transport
 Wealth Mgt
Regions
Africa
Asia
Asia Pacific
Australasia
Canada
Caribbean
Europe
European Union
Latin America
Middle East
U.K.
United States
Worldwide Updates
Check to state you have read and
agree to our Terms and Conditions

Terms & Conditions and Privacy Statement

Mondaq.com (the Website) is owned and managed by Mondaq Ltd and as a user you are granted a non-exclusive, revocable license to access the Website under its terms and conditions of use. Your use of the Website constitutes your agreement to the following terms and conditions of use. Mondaq Ltd may terminate your use of the Website if you are in breach of these terms and conditions or if Mondaq Ltd decides to terminate your license of use for whatever reason.

Use of www.mondaq.com

You may use the Website but are required to register as a user if you wish to read the full text of the content and articles available (the Content). You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these terms & conditions or with the prior written consent of Mondaq Ltd. You may not use electronic or other means to extract details or information about Mondaq.com’s content, users or contributors in order to offer them any services or products which compete directly or indirectly with Mondaq Ltd’s services and products.

Disclaimer

Mondaq Ltd and/or its respective suppliers make no representations about the suitability of the information contained in the documents and related graphics published on this server for any purpose. All such documents and related graphics are provided "as is" without warranty of any kind. Mondaq Ltd and/or its respective suppliers hereby disclaim all warranties and conditions with regard to this information, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. In no event shall Mondaq Ltd and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use or performance of information available from this server.

The documents and related graphics published on this server could include technical inaccuracies or typographical errors. Changes are periodically added to the information herein. Mondaq Ltd and/or its respective suppliers may make improvements and/or changes in the product(s) and/or the program(s) described herein at any time.

Registration

Mondaq Ltd requires you to register and provide information that personally identifies you, including what sort of information you are interested in, for three primary purposes:

  • To allow you to personalize the Mondaq websites you are visiting.
  • To enable features such as password reminder, newsletter alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our information providers who provide information free for your use.

Mondaq (and its affiliate sites) do not sell or provide your details to third parties other than information providers. The reason we provide our information providers with this information is so that they can measure the response their articles are receiving and provide you with information about their products and services.

If you do not want us to provide your name and email address you may opt out by clicking here .

If you do not wish to receive any future announcements of products and services offered by Mondaq by clicking here .

Information Collection and Use

We require site users to register with Mondaq (and its affiliate sites) to view the free information on the site. We also collect information from our users at several different points on the websites: this is so that we can customise the sites according to individual usage, provide 'session-aware' functionality, and ensure that content is acquired and developed appropriately. This gives us an overall picture of our user profiles, which in turn shows to our Editorial Contributors the type of person they are reaching by posting articles on Mondaq (and its affiliate sites) – meaning more free content for registered users.

We are only able to provide the material on the Mondaq (and its affiliate sites) site free to site visitors because we can pass on information about the pages that users are viewing and the personal information users provide to us (e.g. email addresses) to reputable contributing firms such as law firms who author those pages. We do not sell or rent information to anyone else other than the authors of those pages, who may change from time to time. Should you wish us not to disclose your details to any of these parties, please tick the box above or tick the box marked "Opt out of Registration Information Disclosure" on the Your Profile page. We and our author organisations may only contact you via email or other means if you allow us to do so. Users can opt out of contact when they register on the site, or send an email to unsubscribe@mondaq.com with “no disclosure” in the subject heading

Mondaq News Alerts

In order to receive Mondaq News Alerts, users have to complete a separate registration form. This is a personalised service where users choose regions and topics of interest and we send it only to those users who have requested it. Users can stop receiving these Alerts by going to the Mondaq News Alerts page and deselecting all interest areas. In the same way users can amend their personal preferences to add or remove subject areas.

Cookies

A cookie is a small text file written to a user’s hard drive that contains an identifying user number. The cookies do not contain any personal information about users. We use the cookie so users do not have to log in every time they use the service and the cookie will automatically expire if you do not visit the Mondaq website (or its affiliate sites) for 12 months. We also use the cookie to personalise a user's experience of the site (for example to show information specific to a user's region). As the Mondaq sites are fully personalised and cookies are essential to its core technology the site will function unpredictably with browsers that do not support cookies - or where cookies are disabled (in these circumstances we advise you to attempt to locate the information you require elsewhere on the web). However if you are concerned about the presence of a Mondaq cookie on your machine you can also choose to expire the cookie immediately (remove it) by selecting the 'Log Off' menu option as the last thing you do when you use the site.

Some of our business partners may use cookies on our site (for example, advertisers). However, we have no access to or control over these cookies and we are not aware of any at present that do so.

Log Files

We use IP addresses to analyse trends, administer the site, track movement, and gather broad demographic information for aggregate use. IP addresses are not linked to personally identifiable information.

Links

This web site contains links to other sites. Please be aware that Mondaq (or its affiliate sites) are not responsible for the privacy practices of such other sites. We encourage our users to be aware when they leave our site and to read the privacy statements of these third party sites. This privacy statement applies solely to information collected by this Web site.

Surveys & Contests

From time-to-time our site requests information from users via surveys or contests. Participation in these surveys or contests is completely voluntary and the user therefore has a choice whether or not to disclose any information requested. Information requested may include contact information (such as name and delivery address), and demographic information (such as postcode, age level). Contact information will be used to notify the winners and award prizes. Survey information will be used for purposes of monitoring or improving the functionality of the site.

Mail-A-Friend

If a user elects to use our referral service for informing a friend about our site, we ask them for the friend’s name and email address. Mondaq stores this information and may contact the friend to invite them to register with Mondaq, but they will not be contacted more than once. The friend may contact Mondaq to request the removal of this information from our database.

Security

This website takes every reasonable precaution to protect our users’ information. When users submit sensitive information via the website, your information is protected using firewalls and other security technology. If you have any questions about the security at our website, you can send an email to webmaster@mondaq.com.

Correcting/Updating Personal Information

If a user’s personally identifiable information changes (such as postcode), or if a user no longer desires our service, we will endeavour to provide a way to correct, update or remove that user’s personal data provided to us. This can usually be done at the “Your Profile” page or by sending an email to EditorialAdvisor@mondaq.com.

Notification of Changes

If we decide to change our Terms & Conditions or Privacy Policy, we will post those changes on our site so our users are always aware of what information we collect, how we use it, and under what circumstances, if any, we disclose it. If at any point we decide to use personally identifiable information in a manner different from that stated at the time it was collected, we will notify users by way of an email. Users will have a choice as to whether or not we use their information in this different manner. We will use information in accordance with the privacy policy under which the information was collected.

How to contact Mondaq

You can contact us with comments or queries at enquiries@mondaq.com.

If for some reason you believe Mondaq Ltd. has not adhered to these principles, please notify us by e-mail at problems@mondaq.com and we will use commercially reasonable efforts to determine and correct the problem promptly.