Surrogacy arrangements – arrangements whereby a woman agrees to become pregnant and give birth to a child for another individual or couple – are amongst the most controversial methods of family creation.
Access to surrogacy may depend on religion, geography, jurisdiction and sexual orientation. There is no clear international consensus on the legality of surrogacy or the legal status of children born through surrogate arrangements.
In most continental European countries, surrogacy is limited to couples facing medical infertility. Although courts have been willing to recognize and give full effect to birth certificates of children carried to term through a surrogate mother abroad. The United States, on the flipside, is seen as a free-for-all due to more relaxed surrogacy laws, and an often more commercial approach to the practice generally.
Compared to most European countries, accessing surrogacy in the U.K. is relatively easy. It is available under the NHS for certain medical conditions and is regulated by the Human Fertilisation and Embryology Authority. In the UK, a woman giving birth to a child will automatically be the legal mother, and gain parental responsibility, regardless of whether the egg from which the pregnancy resulted is not her own. Even in surrogacy arrangements, the gestational mother is the child’s mother until legal parenthood is transferred through a parental order made by the courts. The Human Fertilisation and Embryology Act 2008 sets down the key requirements for a transfer of parentage from the surrogate mother (and her spouse, if applicable) to the intended parents. There is, however, no obligation on the surrogate to give the child to the parents. If she does not consent, there is nothing the commissioning parents can do to enforce a surrogacy arrangement.
The Human Fertilisation and Embryology Act makes surrogacy arrangements made for commercial purposes, in a commercial setting or for commercial gain, illegal. Courts have grappled with how to handle these types of commercial agreements when they do arise. As they often find that it would nonetheless be in the best interest for the child to go to the intended parents, even if they engaged in illegal activity by paying a surrogate.
Deciding to start a family is never a decision that should be taken lightly. It is an even less easy time where couples are unable to conceive naturally and are required to rely on reproductive technologies such as surrogacy. As such, it is important to be aware of the financial and legal consequences attached with surrogacy agreements. If you are uncertain as to whether surrogacy is right for you, Grayfords can help.