Surrogacy Law across different Regimes proves to be an uneven Legal Playing Field

The scientific advances as long ago as 1944 paved the way for the arrival of surrogacy in the 1970s.  Since then surrogacy has enjoyed a chequered path through the decades to the modern day. For an individual or couple embarking on the route to surrogacy would be unwise to do so without sound legal advice; Giambrone’s highly experienced family law team call attention to the fact that it remains an area of law that varies considerably around the world and it would be extremely imprudent to fail to ensure that your intended objective was free from any foreseeable legal complications.

There are countries that do not have specific laws addressing surrogacy, others that ban any kind of commercial contract relating to surrogacy but will allow compassionate surrogacy where no money changes hands and some countries place a total ban on any kind of surrogacy.  Even within those countries that do permit commercial surrogacy, the laws can vary quite considerably.  Some, previously liberal countries, have now back-tracked and limit the practice; Thailand no longer permits commercial surrogacy only altruistic surrogacy, which is restricted to Thai couples only. Similarly, Cambodia, Nepal, Mexico and India have banned commercial surrogacy for foreigners.

Annah Cheatham, an associate in the Giambrone family law team, stated “a couple or individual considering surrogacy must consider every possible angle associated with their intended course of action, including the nationality of their baby and the ability to fulfil the immigration requirements to bring the baby home to their own country” she further commented, “also, it is imperative that all the mechanisms for the legal recognition of the intended parents as the legal parents of their baby are observed by whatever means is acceptable to the regime in which the surrogacy agreement was drawn up.”  Surrogacy agreements are unenforceable in the UK and the birth mother is regarded as the child’s mother until such time as she chooses to relinquish her legal position. Also, there must be a genetic link between the child and the new parents.

The law governing surrogacy in England and Wales, The Human Fertilisation and Embryology Act 2008 was introduced when surrogacy arrangements were tolerated but not encouraged.  The Act was further amended by the Human Fertilisation and Embryology Act 2008 (Remedial) Order 2018, s.54A, permitting a parental order, granting parental responsibility, to be made in favour of one person. Surrogacy has opened the door to the possibility of LGBT couples and individuals having a family.  The UK is one of the countries that is lukewarm to surrogacy and surrogacy contracts are unenforceable, which results in all parties having to rely on honour to fulfil the agreement. Payments to surrogates for their services are illegal and not permitted but reasonable expenses are permitted to be paid. In practice as there is no definition of “reasonable”, the question of payment that is likely to exceed “reasonable” is a matter for the family court to decide and authorise prior to making a parental order. 

In one recent case the Supreme Court deviated, albeit obliquely, from the premise of no payment for surrogacy by awarding £538,000 to a young woman aged 29 whose fertility had been dramatically compromised by delay in diagnosis of cancer, which, when finally discovered necessitated extensive treatment rendering her unable to have children. The award would  enables her to travel to California, where the practice of payment for surrogates is permitted, in order to be able make a surrogacy agreement to allow her to fulfil her ambition have a family.

The minefield that ill-considered surrogacy poses was starkly illustrated in a matter that Giambrone’s family law team was instructed by a gay couple in respect of their surrogacy arrangement.  The two men, the proposed parents, had been married for two years and wished to have a child.  However, one partner was an older man which precluded the use of a surrogacy agency. A close mutual friend of the couple offered to act as a surrogate for the couple. The conception was achieved by the surrogate mother employing a do-it-yourself procedure.  The baby was born and as the two men wished to live in the UK an application for a parental order was requested. The delighted couple took possession of the child and an application for the parental order was imminent when it was discovered that the results of a DNA test of the presumed father revealed that he was not the father. On learning of the bombshell discovery Annah Cheatham, after much consideration, felt that there may be a legal remedy to the issue.  However, a further bombshell was about to erupt in that the other proposed parent was unwilling to bring up a child that had no connection to the couple and the baby was handed to the authorities.

Surrogacy will always be an emotive issue and there have been some regrettable calamities and spectacular fails with cases of surrogates refusing to part with the baby and prospective parents rejecting disabled children. A British surrogate mother is bringing up a rejected baby as her own when the potential parents refused to take one of the twins they had planned to be part of their family because she was disabled, choosing only to take the able-bodied twin.  In the rarest of cases in America in 2017 an Arkansas surrogate mother Jessica Allen conceived what initially appeared to be twins; however, one baby was actually the child of Jessica and her husband in an extremely rare case of superfetation, a condition in which a woman who is already pregnant conceives another child. The twins had characteristics of different races gave rise to questions about the children’s parentage DNA tests proved that only one child was in fact the child of the surrogate mother and her husband.  After a prolonged legal case involving many twists and turns, Jessica’s baby was eventually returned to her.

The Law Commission's report into surrogacy and its interim proposals published in 2019, include the creation of a new pathway to legal parenthood, one proposal will allow intended parents to be the legal parents from birth, improving certainty both for them and the surrogateAnnah Cheatham commented, “the Law Commission's final report is due to be published in 2021 and it is hoped that there will be proposals that bring the law in line with today’s thinking about this sensitive and complex area of law.”

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