The pitfalls of surrogacy arrangements

Natasha Slabas highlights deficiencies in the law relating to surrogacy and the need for reform.

The law in England and Wales remains without a robust framework of legislation to enforce surrogacy arrangements. While the Surrogacy Arrangements Act 1985 (SAA 1985), and other legislation, governs surrogacy arrangements, it remains that a surrogacy agreement is not enforceable by or against any of the persons making it. The consequence is that childless couples may decide to venture outside of the UK in order to enter into a surrogacy arrangement. Their escape from the inauspicious English system is short lived however because steps then need to be taken on returning with the child to secure their legal parental status in England and Wales, usually by an application for a parental order. Those returning with a child after an overseas surrogacy arrangement may not know of, let alone understand, the procedure for ensuring that their parental status is recognised in the UK.

Case law demonstrates that judges are prepared to manoeuvre the law wherever possible to prevent parentless children from evolving, but cases may pass through the net with consequences that are less than preferable. A review and amendment of the relevant legislation is necessary and overdue.

Background

The Warnock Report (1984) was the report of the Committee of Enquiry into Human Fertilisation and Embryology, chaired by Mary Warnock and collated by several professionals. It made clear that a surrogacy agreement is an illegal contract and not enforceable in the courts. The report also recognised however that it is inevitable that private surrogacy arrangements will take place, regardless of the lack of enforceability.

Current legislation

The legislation in the UK governing surrogacy arrangements is wide-ranging, and adds to the complexity in deciphering the rules and restrictions. The key legislation is:

• SAA 1985
• Human Fertilisation and Embryology Act 2008 (HFEA 2008)
• Human Fertilisation and Embryology (Parental Orders) Regulations 2010
• Part 13 of the Family Procedure Rules 2010 (FPR 2010); and
• Section 1 of the Adoption and Children Act 2002 (ACA 2002)

Terminology

There are two types of surrogacy arrangements:

• partial surrogacy —where the surrogate mother or carrier is the biological mother and the child will be related to the father or sperm donor and surrogate mother; and
• total surrogacy—where the carrier is not related to the child and she is a gestational parent; one of three variations can be implemented : (i) genetic mother’s egg and genetic father’s sperm (or sperm donor);  (ii) donor egg and genetic father’s sperm; (iii) embryo via donor egg and donor sperm (although this will not allow for the commissioning parents to later apply for a parental order)

The surrogate mother is treated as the child’s biological mother irrespective of whether her gametes or donor gametes are used to facilitate the pregnancy. The surrogate mother will acquire parental responsibility automatically and, if married at the time of the birth of the child, her husband will also.

The only available methods to for the commissioning parents to acquire legal parenthood are via an application for a parental order (per HFEA 2008, s 54) or an application for an adoption order (under ACA 2002) no earlier than six weeks after the birth (as the consent of the surrogate is only valid after six weeks) and no later than six months from the child’s date of birth.  The waiting time to apply for legal status of at least six weeks after birth arises directly from the notion held at the time of the Warnock Report that a court of law should not have the ability to remove a child against the carrier’s will, should she change her mind.

There are additional provisions as to remuneration for the carrier mother but the commissioning couple should only cover reasonable expenses. Commercial arrangements are prohibited (SAA 1985, s 2(1)). But how would a larger sum of money to remunerate a carrier be harmful? It could provide for first class medical treatment, should something go wrong during the pregnancy, or symbolise a gesture of gratitude. An application for a parental order cannot be made by one person, it must be made by a married couple, civil partners or by two people in a relationship of enduring nature (HFEA 2008, s 54(2)).  This begs the question of why the circumstances leading to parenthood should dictate who can or cannot be a single parent?

The commissioning couple is not legally recognised as the child’s parents throughout the pregnancy and not before six weeks after birth, despite them entering into a surrogacy arrangement with the full intention of the child being their responsibility for its age of minority. Equally, a carrier and her husband (where applicable) do not seek parental status yet they are legally responsible for the child. The law thus grants responsibilities of the contrary intention to those involved.

There are additional provisions as to child maintenance, inheritance and child arrangements that are factored in the usual way regarding a legal parent. In my view, as the law currently stands, the legal status provisions are inadequate for both the commissioning couple and the carrier.

Recent developments

Some recent case law dealing with surrogacy and parental orders includes:

• Re X (A Child) (Surrogacy: Time Limit) [2014] EWHC 3135 (Fam)—the commissioning parents made their application two years and two months after the child’s birth and were separated at the time of the application. Adoption would not suffice as the father was the genetic father and a parental order would provide the ’optimum legal and psychological solution’. Munby P decided that the separation did not preclude the parents from making the application, as they were still married, and that to prevent them from obtaining a parental order by virtue of delay would be nonsensical.
• A and B (No 2 – Parental Order) [2015] EWHC 2080 (Fam)—Theis J ruled that an out-of-time application by separated commissioning parents should not be an absolute bar since making an order would not be against the long term welfare needs of the twins. The matter concerned an application made by a married couple who had commissioned a surrogate in India. The couple’s separation did not preclude their making of the application as they demonstrated commitment to the children. The consent of the surrogate and her husband had been obtained in accordance with FPR 2010, 13.11(4). Payments had been made to a clinic that the commissioners approached while in India via an advertisement for surrogacy services through an agent in a newspaper. Theis J found that the consent to the arrangement was not dependant on these payments and so the test that this was given unconditionally was satisfied (HFEA 2008, s 54(6)).Furthermore, the court applications were properly served on the surrogate and her husband as per FPR 2010, 13.6 and the sums paid were not disproportionate to reasonable expenses and not of commercial value.
• Re Z (A Child: Human Fertilisation and Embryology Act: Parental Order) [2015] EWFC 73—a single man was denied a parental order because he failed to satisfy the provisions of HFEA 2008, s 54(2). Munby P held that the principle of a couple applying for a parental order is ’a clear and prominent feature of the legislation’. The applicant had argued that his art 8 rights under the European Convention on Human Rights were breached as he would be denied a single person’s right to private and family life.
• D (a Child: Habitual Residence: Consent and Acquiescence) [2015] EWHC 1562 (Fam)—Pauffley J heard an unusual case concerning an application for summary return of a child to Germany brought by its biological mother against the father. Pauffley J described it as an ’extraordinary dispute’ as it resulted from an overseas arrangement arising from a couple’s inability to conceive. Pauffley J ruled that such an arrangement could have only intended that the child live with them in the UK, as it would be implausible for a childless woman and her husband to enter into such an arrangement just for occasional contact.

Conclusion

Judges will manoeuvre the law concerning surrogacy where the long term welfare of a child is in jeopardy, but commissioning couples who go abroad to fulfil their desire of becoming a parent are still essentially in no man’s land. The foreign jurisdiction may provide for unknown, undesired and uncontrolled mechanisms for surrogacy, but this is not a deterrent to some.

There are surrogacy agencies in operation in the UK whose attempts to manage the pitfalls and minimise the risks to all concerned in this type of arrangement are commendable. But the law is still inadequate and needs to change.

Natasha Slabas is a solicitor at Philcox Gray and represented the father in D (a Child: Habitual Residence: Consent and Acquiescence) [2015] EWHC 1562 (Fam).

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