Many family law practitioners do not come across surrogacy arrangements as part of their bread and butter work, in fact, some may never do. However, issues relating to surrogacy are not limited to the client who calls and specifically asks for advice in respect of an intended, or recent surrogacy arrangement.
Surrogacy is an increasingly common means for people, who are unable to have a child naturally, to become parents. Families created through surrogacy are not unlike any other family: relationships may break down and ‘run of the mill’ family law issues might arise. It is under these circumstances that difficulties can often arise. General assumptions as to legal parentage or recognition of birth certificates do not necessarily apply in the context of children conceived through surrogacy. Even the general family lawyer who prefers not to deal with surrogacy arrangements needs to be able to identify potential issues so that they can be dealt with properly. Mrs Justice Eleanor King (as she then was) in JP v LP & Others  EWHC 595 (Fam) delivered this cautionary tale:
‘ The application for and granting of parental orders whilst not ‘routine’ is no longer the exclusive province of lawyers specialising in reproduction and human embryology law. An understanding of, and ability to make a proper application complying with the provisions of the Human Fertilisation and Embryology Authority (HFEA) 2008, should be as much a part of the skill set of a competent general family lawyer as is a step parent adoption.’
Whenever a person enters, or considers entering, into a surrogacy arrangement, there are a number of legal issues that arise. If, as a family lawyer, you are considering advising a client in respect of a surrogacy arrangement you need to first be familiar with the Surrogacy Arrangements Act 1985 and the Human Fertilisation and Embryology Act 2008.
Surrogacy Arrangements Act 1985
The Surrogacy Arrangements Act 1985 creates a number of criminal offences in respect of surrogacy arrangements (one of which relates to third parties - including lawyers - so extra care and caution is required.
Here are the basics:
Surrogacy arrangements are not enforceable as a matter of English law (section 1A) by or against any of the persons making the surrogacy arrangement.
It is a criminal offence in the United Kingdom to advertise for a surrogate, or to advertise for a willingness to be a surrogate (section 3).
It is a criminal offence, for anyone other than the commissioning parents or the surrogate, on a commercial basis to:
initiate any negotiations with a view to the making of a surrogacy arrangement
take part in any negotiations with a view to the making of a surrogacy arrangement
offer or agree to negotiate a surrogacy arrangement
compile any information with a view to its use in making, or negotiating the making of, a surrogacy arrangement.
Extra care and caution needs to be taken in respect of the offence against third party brokers as outlined above. If clients are entering into surrogacy arrangements overseas, their surrogacy contracts are likely to have been prepared by lawyers in that jurisdiction and it is quite common for clients to seek English legal advice in respect of those agreements. Advising on such arrangements could cause a family lawyer in this jurisdiction to inadvertently commit a criminal offence.
In the United Kingdom, the legal parentage of any child conceived as a result of artificial insemination is determined by the provisions of the Human Fertilisation and Embryology Act 1990 or 2008 (children conceived after April 2009 fall under the 2008 provisions). This is the case regardless of where in the world the child was born and regardless of how the birth certificate in the home country attributes legal parentage.
Under English law, the child’s mother will be the surrogate (section 33 of the HFEA 2008) regardless of whether or not she has any biological link to the child, even if the child is the full genetic child of the commissioning parents. If the surrogate is married, or in a civil partnership at the time of the artificial insemination, her spouse or civil partner will be the child’s second legal parent, unless it can be shown that the spouse/civil partner did not consent to the pregnancy. Accordingly, in domestic surrogacy cases, the birth of the child must be registered with the surrogate as the 'mother' and, if she is married, her husband, wife, or civil partner will in most cases be the second legal parent.
In international surrogacy arrangements, the birth is likely to be registered differently according to the law of the jurisdiction in which the child was born. There are a number of popular destinations for surrogacy including some areas within the United States and Canada, Ukraine, Georgia and Russia. India used to be popular for surrogacy although like many of the destinations in the developing world, the laws have changed recently to become more restrictive towards surrogacy. However what most of the popular surrogacy 'destinations' have in common is that the law of that particular jurisdiction will recognise the commissioning parents as the legal parents either before, or shortly after birth. Most commissioning parents who have entered into surrogacy arrangements overseas will have a birth certificate listing them as the legal parents.
English family lawyers need to advise their clients that the fact that they have secured their legal parentage in the jurisdiction of their child’s birth, does not mean that their legal parentage will be recognised as a matter of English law.
Provided the commissioning parents can satisfy the criteria in section 54 of the HFEA 2008, they should normally be advised to apply for a parental order in respect of the child to secure the child’s legal parentage so that their legal parentage reflects their reality.
What if your client doesn’t have a parental order?
It has always been clear to those who practice in this area that there are a greater number of people entering into surrogacy arrangements than there are applicants for parental orders. This means that not every child who is born to a surrogacy arrangement is then subject to an application for a parental order. This may be because their parents cannot satisfy the statutory criteria, or it may be because their parents do not see the need for it or they perhaps not realise that they need to do anything else to settle their legal parentage.
If the parents separate, and they do not have a parental order, there are added legal issues to think about. If the surrogate was married, neither of the intended parents are likely to be the legal parents. If the surrogate was unmarried, the biological father may be the child’s legal parent but if the child’s birth was registered overseas, he will not have parental responsibility just because he is named on the birth certificate. This is a common misconception among family lawyers, probably as a result of us paraphrasing section 4 of the Children Act 1989 to say ‘being named on the birth certificate.’ Registration following birth only confers parental responsibility if registered in accordance with the Birth Deaths Registration Act 1953 (ie registered in the United Kingdom).
On a practical level, the absence of a parental order may mean that the intended parents do not have a statutory obligation to support the child under the child support legislation and if an application is made under the Children Act 1989 for child arrangement orders, permission may be required to make the application and the Family Procedure Rules (FPR) 2010 would require the surrogate mother (and her husband) to be joined as a respondent.
What can be done?
Section 54(3) of the HFEA 2008 provides that an application for a parental order 'must' be made within six months of the child being born. It is perhaps not surprising that until relatively recently, those lawyers who routinely practised in this area, and indeed the High Court, interpreted 'must' as meaning 'must'. The six-month deadline was considered a strict and non-extendable deadline and if that deadline had been missed then alternative orders would need to be applied for. That all changed in 2014 with the president of the Family Division’s decision in Re X (Surrogacy Time Limits)  EWHC in which it is was held that a parental order could be made notwithstanding that it was made out of time. This decision has been followed in further decisions of Mrs Justice Theis and Ms Justice Russell.
Even where intended parents have separated they should consider making a joint application for a parental order. In Re A and B (No 1) (Fact Finding)  EWHC 1059 (Fam) and Re A and B (No 2) (Parental Order)  EWHC 2080 (Fam) Mrs Justice Theis made a parental order even where the applicants had separated before making the application, and were embroiled in protracted litigation in relation to the children.
The law relating to surrogacy is a niche and specialised area but it is important nonetheless for even the general family lawyer to have an awareness of the issues. It is all too easy not to look beyond the names printed on a child’s birth certificate, or to not do any more than simply accepting a foreign court’s order declaring that the intended parents are the legal parents, but to not do so could have considerable consequences for your client, and possibly for your insurance premiums.
About the author - Colin Rogerson
Colin Rogerson is an Associate and Solicitor Advocate at
Dawson Cornwell, London. He is a specialist children lawyer with a recognised practice in the law relating to surrogacy and assisted reproduction. He was awarded a 'Rising Star under 40' award from the National LGBT Bar Association and Interlaw Diversity Forum and is a regular speaker on surrogacy law issues nationally and internationally. He sits on the Executive Council of the American Bar Association’s Assisted Reproductive Technology Committee as an international representative and is a Fellow of the American Academy of Assisted Reproductive Technology Attorneys. He has acted in a number of reported decisions in this area of law, including acting for one of the applicants in the case of Re A and B (No 1) (Fact Finding)  EWHC 1059 (Fam) and Re A and B (No 2) (Parental Order)  EWHC 2080 (Fam).