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Surrogacy: The Pathway for Future Families

 In News

The future of family law will most certainly see changes in the coming years, to bring it in line with the various changes in society and around the world, but to also ensure that it recognises the needs of people in the 21st century.  Within the ambit of family law is the area of Surrogacy and Fertility Law, and this is a specialist area which is recognised around the world, to assist families/couples and intended single parents fulfil their dream of having a family.

Whilst the area of Surrogacy sometimes attracts negativity, if you look at the reason this area of law exists it enables the creation of families, and that is one of the main reasons for human life, in the creation of life and a line of descendants.  To that extent this article focuses on how the area of Surrogacy law is there to shape the future, and what ‘the future holds for surrogacy around the world’.

Written by Anne-Marie Hamer at Spencer West LLP, Member of IDR.

Surrogacy in the UK                                                                         

Surrogacy is a well-recognised concept in the UK, but if you are unfamiliar with what the terms means ‘it offers a wonderful opportunity for any intended parent(s) who are struggling to conceive via the traditional method to engage in an arrangement with a surrogate woman to have a child/children’, and with the assistance of medical professionals and lawyers it enables for the legal recognition of the child born, as if that child was the intended parents, by applying for a Parental Order.

In 2017 the Economist quoted that ‘Surrogacy is rapidly becoming a popular alternative for couples struggling to conceive in the traditional manner and they went on to say that around four hundred children were through surrogacy in 2016 (eight times as many as 2007)’.  It is believed that the demand for surrogacy has increased in the UK due to several factors, such as other countries banning surrogacy; to couples waiting much later in life to have children, and the limitations to fertility treatments in the UK.  The Department of Health has published guidance on this option titled ‘The Surrogacy Pathway’ and you can access this: https://assets.publishing.service.gov.uk

Surrogacy in the UK is permitted on an altruistic basis, which means you can consider a surrogacy arrangement, where you are only allowed to pay the surrogate(s) reasonable expenses.  Commercial surrogacy is not permitted in the UK, and so it is important to research this area of law carefully and consider all options available to you before you embark on this rewarding pathway to parenthood.

At present surrogacy arrangements in the UK are governed by several acts of parliament, such as the Surrogacy Arrangements Act 1985, the Human Fertilisation and Embryology Act 2008 (HFEA 2008) and the Adoption and Children Act 2002 (ACA 2002). For many years, practitioners and health professionals have been arguing for a change to the surrogacy laws to offer more protection and a more stream-lined process, including Sir James Lawrence Mumby.  After listening to Sir Mumby talk in London, there is a great deal of work going on behind the scenes to ensure that this area of law receives the attention it so requires and that soon we can expect changes to UK law, which will hopefully offer more protection to all parties involved in the surrogacy journey.  It is hoped that those changes will offer more security and a defined framework, so that those involved have protection.

At this current time any intended parent, which includes a single adult can apply under Section 54, HFEA 2008 for a parental order so that the legal parenthood is conferred on the intended parent(s).  Until that Order is granted the legal rights of the child/children remain with the surrogate mother and her partner, if married. Therefore, the need for all parties to engage with professionals and legal advisers well before embarking on this option is vitally important, to ensure that everyone understands their rights.

If you are contemplating going abroad for a Surrogacy Arrangement, there are many countries that are advanced in their processes and offer more protection to intended parent(s) using a commercial surrogacy arrangement. You will of course need to consider cross-border issues and plan for your return to the UK after birth.

As it stands there is no single legal process for parents wishing to engage in an international surrogacy arrangement. With every case, careful attention and legal planning is required to ensure that parents can engage in the process without the pitfalls.  It is vital that all intended parents plan properly and consider using those countries that are well-established in the surrogacy field.  The UK courts will want to ensure that any foreign surrogate fully understands her rights and any documentation that she has been provided with for signature. The UK courts will also have to consider issues of domicile as well as the expenses paid for any commercial arrangement.

There are many countries across the world that welcome the process of surrogacy and the United States, such as California and Canada are extremely popular because of their experience and laws in this area.  For children born in Canada or the United States, they are recognised as Canadian or American citizens and parents from the UK can obtain a passport within a three-month period.  It is normal to expect that most of those parents engaged in this process travel back to the UK with the child/children(s) foreign passport.  Parents must be aware that there is no guarantee that they will be admitted with their child/children to the United Kingdom, because of visa complications, and so careful planning is required.  Intended parents can of course apply for a British Passport or an entry clearance visa stamp in the United States prior to travel to eliminate any issues.  However, parents must be aware that this can take time.

A British passport is only available immediately if the surrogate is unmarried and the British biological father is registered on the child’s birth certificate in the United States (for states).  The alternative is that the child/children will be registered as a British Citizen or will have to apply for an entry clearance visa.

For other countries that are not as well-established as the United States or Canada, such as Thailand, Russia, Georgia, Ukraine and India there are multiple options to consider.  It is vitally important that intended parents undertake as much research as possible to eliminate any pitfalls.

Intended parents can obtain a British passport for their child/children if he or she is born British or successfully registered as a British Citizen.  Parents can apply for an entry clearance visa, which is granted on a discretionary basis where intended parents can undertake to apply for a parental order.

A visa either takes the form of a stamp in a foreign passport or a free-standing travel document if the child has no passport.

Planning is vital and parents must be prepared to stay in the birth country for a period of 4-5 months.

The main countries that permit altruistic surrogacy include Australia, Canada (save for Quebec, where all surrogacy contracts are unenforceable), Georgia, Greece, New Zealand, and the United Kingdom.  In those countries commercial surrogacy is illegal. The popular destination for altruistic and commercial surrogacy is the United States, although it is not accepted in every state.  The states that permit commercial surrogacy include California, Illinois, Arkansas, Maryland, and New Hampshire.

The countries that do not permit either commercial or altruistic surrogacy include Finland, France, Hong Kong, Hungary, Iceland, Italy, and Pakistan.  The laws in each country can change very quickly, so keeping abreast of developments is crucial. At the time of preparing this article, the above information is correct and current, but this can change and subject to the country’s laws.

Given the desire worldwide for surrogacy arrangements, you would have thought there would be one recognised body to assist, but sadly there is not, and to this extent this is one of the reasons that we see surrogacy tourism.

The potential changes that the U.K could see to surrogacy reform and the parental order system could incorporate the process, its regulation and the ability to offer more protection to all parties involved.  At this present time, surrogacy laws are currently under review by the Law Commission of England and Wales, and it is expected that by the early part of 2022 we shall see further developments.

In 2022 we could expect to see consideration being given to the following changes: –

  • The creation of more security, so that at the point of birth the child’s intended parents, become the legal parents, so that a ‘new pathway could be introduced for intended parents’, ensuring that they meet the eligibility criteria. There is also the possibility of surrogacy arrangement needing to be endorsed by a government body, thus providing a more streamlined process.
  • The possibility of international surrogacy arrangements being recognised on a case-by-case basis, and this would give recognition to the countries will with developed practices, so that they become a more workable option.
  • A clearer framework for the involvement of other professionals engaged in the surrogacy process, with the suggestion that regulation is maintained by the HFEA.
  • Clarity and framework on the payments permitted under altruistic surrogacy.

The aim of these prospective new changes is to primarily ensure that the ‘children’s best interests’ are protected, and with parents having the time to carefully considering all aspects of the process prior to engaging into any surrogacy arrangement, whether that it is in the U.K or abroad.

Undoubtedly the Commission have spent a great deal of time considering the countries that have streamlined the process, such as Canada and California, and there is the optimism that in the future we may see some paralleled working patterns between lawyers specialising in this area of law.  There is a great deal optimism amongst family lawyers that the introduction of the above proposed changes will assist all parties involved in the surrogacy process.

I can therefore see those family lawyers who work in this field adopting a very competitive approach to surrogacy arrangements on a domestic basis, as well as international basis.

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