The pitter patter of obsolete….legislation

The law is at best outdated and at worst entirely unfit for purpose in a society where family structures are becoming increasingly complex.

02 Nov 2017
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Surrogates, commissioning parents, lawyers, and other fertility professionals have long called for significant reform of the current regime of surrogacy and fertility law in this country.

The law in this area is unfortunately and unnecessarily complex. At risk of being incredibly, mind-numbingly dull, I will try to clarify the most important issues. Deep breaths and here we go...

When a surrogate baby is born, the legal mother is always the woman who gave birth to the child and her name goes on the birth certificate; if she is married at the time, or in a civil partnership, her spouse or civil partner must be named on the birth certificate (unless a lack of consent is formally recorded in writing). However this rule does not apply to unmarried/un-civil-partnered mothers. Their partner does not have to be listed on the birth certificate (although not everyone knows this and so sometimes they are listed there in error), so a biologically related commissioning father can usually be listed on the birth certificate. The commissioning mother (or biologically unrelated second parent in situations involving same-sex couples), has absolutely no automatic legal relationship whatsoever with the baby.

In practice, what usually happens after birth is that the baby is handed over to the commissioning parents to take back to their home to begin the process of caring for and raising their new-born child. This happens in spite of the fact that usually both of the commissioning parents have no legal relationship to their baby. In order to obtain such a relationship, they have to apply to the court (within 6 months of birth) for a parental order to remedy this, so that they can make various decisions about their child for the rest of its life.

A parental order is unique in family law. It changes the child's legal status, like an adoption order does, but in a more comprehensive way. Rather than changing its status from that day onwards, it effectively retrospectively changes the entire legal status of the child, from birth.

The process of applying for a parental order is unfortunately a complex, usually lengthy, and often costly exercise. The court does not simply accept that the commissioning parents are biologically related to the baby and hand them a parental order; they have to prove that they meet various conditions as laid out in the Human Fertilisation and Embryology Act 2008. These include conditions such as the applicants being in an enduring family relationship (in relation to couples who are not married or civil partnered) and, usually the most importantly, that no money or other benefit has been given or received by either of the applicants in relation to the baby.

This is the most important misrepresentation in the article. COTs and Surrogacy UK do advocate altruistic, rather than paid for, surrogacy, as the article says. But they do not do so in order to make the parental order application process more simple; they do so because commercial surrogacy is illegal in this country. In England and Wales it is an offence under the Surrogacy Arrangements Act 1985 punishable by up to 3 months in prison to negotiate surrogacy arrangements on a commercial basis (although this offence does not apply to surrogate or commissioning parents). Although this might seem draconian now, given scientific advances and an increasingly relaxed public attitude towards alternative methods of creating families, if you take into account the furore surrounding Ms Cotton's case in the 1980s, this decision by the government at the time makes sense.

The restriction on payments by commissioning parents is, typically, the highest hurdle to cross in parental order proceedings. With dwindling numbers of women prepared to be altruistic surrogates in this country and with commercial surrogacy being legal in certain foreign jurisdictions and therefore surrogates more readily available, many commissioning parents go through commercial surrogacy processes abroad. They often do not realise, however, that they still need to go through the parental order application process when they get home to England with their bundle of joy even if they are both named on the birth certificate. They then have to ask the court to retrospectively authorise the commercial payments that they made on the basis that they were payments to reimburse the surrogate for "expenses reasonably incurred", which is the only available loophole. When they have paid tens, maybe hundreds, of thousands of pounds, this is a difficult argument to make.

The reality is, however, that judges don't like to leave an infant child in legal limbo, with surrogate parents who have waived all legal relationship with the child, and commissioning parents who have not met the conditions set down in the Human Fertilisation and Embryology Act 2008 necessary to obtain a legal relationship with the child. So, usually, the court will authorise the transactions. However there are some conditions (such as consent from the surrogate mother to the order) that have no wiggle room, leaving the court with its hands tied.

The above is only a brief summary of the primary issues with the legal regime as it currently is; the reality is that it can be a legal minefield. The process desperately needs simplifying and modernising; not least because the process is emotionally complex as it is, without throwing lawyers and courts and CAFCASS officers into the mix. However, unfortunately, it doesn't look like we're going to get complete reform any time soon despite the fact that we are the first country to permit revolutionary fertility treatments such as "three parent babies". Until then, it is absolutely vital that commissioning parents and surrogate parents take proper advice on the legal aspects and ramifications of the arrangements before taking any real steps.


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