Alice Mantle, Managing Associate for our newest partner, Mishcon de Reya, explained the current surrogacy laws in the UK and how they could affect you.
Alice tells us that, ‘In the UK, surrogacy is legal. Since 1990 Parental Orders have been available to bestow legal parenthood on intended parents and to end a surrogate’s legal relationship with the child.’ Alice adds, ‘Until a Parental Order is made, the surrogate will remain the child’s legal mother regardless of the country where the surrogacy took place. For example, in California you can obtain pre-birth orders that confirm parenthood before a child is born. However, these parents would still need to obtain a Parental Order in England to be the legal parents here. ’ She goes onto explain, ‘Surrogates must give informed consent ‘freely and unconditionally’. A spouse or civil partner must also give their consent. Consent should be given 6 weeks post birth. The only exceptions are if the surrogate can’t be found or is unable to give consent.’
Alice explains to us that the surrogacy laws in the UK have developed over the years. In 2010, it became possible for same-sex people to apply for a parental order and from 2019 single applicants could apply.
‘The law in the field of surrogacy is currently under review’, Alice tells us. ‘There was a law commission paper and consultation in 2019, with the final report and draft bill expected in Spring 2023, she says.
‘Right now, there are various requirements for obtaining a parental order, for example there must be a genetic link between the child and intended parent, however the Law Commission have proposed that this requirement be removed in cases of medical necessity in domestic surrogacy cases. This proposal is not for international surrogacy cases as there are concerns regarding child trafficking’, Alice tells us.
Alice goes onto explain that, ‘The child’s home must also be with the intended parent and one the of the intended parents must be domiciled here. This is sometimes an issue for our international clients and so it's hoped that the law may change to only require an applicant to be habitually resident rather than domiciled.’
Alice says that an application for a parental order should be made before a child reaches 6 months, albeit, ‘there was recently a Parental Order made in respect of a 24 year old ‘child’- the parents had been unaware that they required the parental order after using a surrogate in America’.
Alice informs us that that commercially negotiating or advertising for a surrogate is a criminal offense. If you are fortunate enough to find a surrogate, UK law stats that ‘reasonable expenses’ can be paid. Although there is no clear definition for how much reasonable expenses are, it is believed that they are, on average, £15,000. Alice explains that, ‘If payments have been made over and above reasonable expenses, the court has to be asked to authorise these payments’.
Alice tells us that, ‘There are lots of requirements for a parental order to be granted and in some cases, they can’t be made. However, when this happens, there are other options for intended parents. Potentially, the child could be adopted or there could be a ‘Child Arrangements Order’, which deals with where the child lives and confers 'Parental Responsibility'. Parental Responsibility isn’t legal parenthood but does give intended parents the right to make important decisions about the child’s upbringing’.
‘It is very important to seek legal advice’, says Alice. ‘This is especially true if travelling abroad for your surrogacy as there can often be problems with bringing the child home. We work very closely with out immigration team to ensure the process is as easy as possible.’
‘I would also suggest looking into some non-profit organisations who can help people when first starting their surrogacy journey’, adds Alice.
If you would like to know more about surrogacy and are considering starting your fertility journey, don’t hesitate to get in contact with us today.
To learn more about Mishcon de Reya please visit this page.
To listen to Dr Venkat talking about surrogacy in a podcast recorded and produced by Mishcon de Reya, please visit this page.