In an Instagram post on Valentine’s Day nearly two months ago, Olympic diving medallist Tom Daley announced that he is expecting his first child with husband Dustin Lance Black via a surrogate.
The couple shared an ultrasound of their son, expected to arrive later this year, and have expressed that their primary reason for using surrogacy was to have a ‘biological connection’ with their child. The couple do not wish to know who the biological father of their child is.
After conducting research on using surrogates, the pair made the decision to use an American surrogate as opposed to one based in England and Wales. The couple have criticised surrogacy law in England and Wales for being more stringent that in the US, and have stated that, while their home country is progressive in areas such as marriage and housing, there is room for improvement on the issue of surrogacy. This frustration is understandable. In England and Wales, surrogate mothers are not permitted to enter into a commercial surrogacy agreement. Therefore, receiving payment before, during or after a surrogacy agreement has been entered into is illegal. Reasonable expenses, however, incurred by the surrogate mother are permitted – such as travel expenses or loss of earnings.
Surrogacy & parental rights
Under the law of England and Wales, a surrogate mother and her spouse will acquire Parental Responsibility and will be regarded as the legal parents of any child born by surrogacy, even if they are not genetically related to the child. However, Parental Responsibility can be transferred by way of a Parental Order. Thus, for Daley and Black to acquire Parental Responsibility and to become the legal parents to their child in England and Wales, a Parental Order will need to be obtained.
In certain states in the USA, however, commercial surrogacy contracts are legally binding and, furthermore, the intended parents may also become the legal parents of a surrogate child from the outset. These are two of the reasons why parents turn to the USA when considering surrogacy.
In a recent podcast, the couple have stated that, despite going through the USA to have their surrogate child, they intend to ensure that their surrogate mother is involved in their child’s life as they grow up. Until then, Daley and Lance Black remain excited for the arrival of their child who will surely make a big splash into the couple’s life together.
Neil Graham, a Partner at Grayfords, comments as follows:
“Altruistic, rather than commercial, surrogacy agreements have been legal in England and Wales since the mid-1980s. However, Parental Responsibility for the child under the law of England and Wales lies initially with the surrogate Mother (and her spouse if she is married) rather than with the intended parents, irrespective of the terms of the surrogacy agreement and irrespective of whether the child is born in England and Wales or abroad. It is, therefore, extremely important to ensure that Parental Orders are obtained in accordance with the law of England and Wales to ensure that Parental Responsibility for the child passes to the intended parents of any such child. Often the need for Parental Orders is overlooked, especially where a child is born under the terms of a surrogacy agreement entered into abroad, which may cause significant difficulty later on, particularly if the relationship between the intended parents subsequently breaks down.
Since December 2016, the Human Fertilisation and Embryology (Mitochondrial Donation) Regulations have made it possible for a child to be conceived with the DNA of three individuals if limited and specific medical criteria require it. Whilst the law of England and Wales currently recognises that a child only has two parents Parental Responsibility can, of course, extend to more than two individuals.”
Here at Grayfords, we have the expertise to advise on surrogacy agreements and their implications under the law of England and Wales, whether entered into here or abroad, in addition to all areas of fertility law. Please do get in touch if we can be of any help in advising on these or any other issues relating to Family Law.