lawyer

This is a piece about the laws relating to surrogacy. For many people surrogacy is the only means to achieve parenthood. However the current surrogacy laws tend to leave the applicants and the child vulnerable.

Why Surrogacy Laws Need Reviewing

Prior to retiring I lived in the UK and worked for 15years as a self employed Guardian. A Guardian is a qualified experienced person who is appointed by the Courts to represent the wishes and feelings of children in Care Proceedings and Adoption. The Guardian’s role is to work in partnership with a solicitor, who legally represents the child, to investigate the child’s circumstances and interview any relevant person involved with the child such as social workers, family and schools. She/he then writes a report for the Court detailing the child’s wishes and feelings, his/her findings and making a recommendation regarding the child’s future.

In respect to uncontested Adoption, Step Parent Adoption and Surrogacy the Guardian can also be appointed by the Court as a Reporting Officer where his/her role is too investigate and seek consent to the application i.e. for adoption or a parental responsibility order. In these cases a solicitor is not usually appointed to work alongside the Reporting Officer although the applicants may wish to be legally represented.

During my fifteen years as a Guardian I worked on five cases of surrogacy and concluded that the law needs reviewing because unlike other child care laws the best interests of the child is not paramount.

Surrogacy is the only means available to some couples to have a child and for many it is the last resort. Prior to reaching the decision to ask another woman to carry a child for them, many couples have experienced years of disappointment not being able to conceive, and undergone intrusive medical procedures.

Asking someone to carry and give birth to a child requires tremendous trust particularly as the law is not in favor of the child or the applicants.

Criteria

Before entering into a surrogacy arrangement in the UK the applicants have to meet certain criteria. Both applicants must be over the age of 18. They must be either married to each other, in a civil partnership or living together. One or both of the applicants must be a biological parent to the child. One or both of the applicants must also be domiciled in the UK, Channel Islands or Isle of Man.

Providing these criteria are met the next step for the applicants is to identify a suitable surrogate. Some couples register with a clinic whilst others choose private arrangements for example with family or friends. I have also noted that during the past few years adverts by applicants and surrogates are being placed in newspapers and on the internet. Whatever method is used to find a surrogate it is essential that the applicants ensure that thorough checks have been made in terms of suitability, reliability, background, motives and where the surrogate’s egg is used, genetic disorders.

Agreement

Once the surrogate is found a meeting takes place to discuss and draw up an agreement of what is required in terms of expectations, contact between the two parties, finances and the terms of the conception.

Method

The surrogate may be asked to impregnate herself with the male applicant’s sperm or she may be required to undergo a medical procedure where the female applicant’s fertilized egg is placed in the surrogate’s womb.

If the first method is used the baby will inherit the surrogates genes alongside the male applicants. In the second method the baby will not be biologically related to the surrogate. Which option is taken is usually reliant upon medical conditions for example if the female applicant is infertile or cannot sustain a pregnancy full term.

Finances

In respect to finances a surrogate cannot legally charge for her services. However the applicants can agree to pay for ‘reasonable’ expenses such as maternity clothes, a mobile phone, time off work, medical expenses and so on.

Birth

The surrogate and applicants usually agree that the applicants will be present during the birth and take the baby home immediately unless otherwise advised by the hospital. Depending upon the agreement the surrogate may or may not remain involved in the child’s life. Plus as the child grows it may not be aware that it was born by surrogacy.

Parental Responsibility and Maternity Leave

After the child is born the proud applicants usually take the baby home and this is when both the child and the applicants are in a vulnerable position because the parental responsibility for the child is held by the surrogate and her husband, if she is married. The applicants therefore legally have no rights and cannot for example give consent to an operation.

Occasionally newspapers report that a surrogate has changed her mind and wants to care for the child which legally she is perfectly able to do as she hold parental responsibility. In this situation the applicants usually involve the Courts and the whole situation becomes very complicated.

The law in respect to surrogacy has clearly not been thought through because after the child is born he or she is placed in the care of two people, the applicants, where one or both are biologically related and yet they don’t hold parental responsibility. On the other hand there is the surrogate, who may or may not be biologically related to the child, and her husband who is definitely not biologically connected, and yet they hold parental responsibility for a child who is not in their care.

In addition although the applicants are caring for the child full time they are not allowed to take maternity or paternity leave whereas the surrogate and her husband have this right.

Application for Parental Responsibility

After six weeks of caring for the child the applicants can make their application to the court for a parental responsibility order. If they do not make the application by the sixth week they cannot apply for PR.

Reporting Officer

However once the application is filed with the Court an officer is appointed. From my experience it may take time to appoint an officer due to the high level of work.

Once appointed the Reporting Officer has to confirm that

The child had his /her home with the applicants throughout the application process.

The surrogate mother and her husband must fully and freely consent to the making of the order.  If the surrogate and her husband are separated the Reporting Officer needs to make every effort to contact him and gain his consent even if he is unaware of his wife’s actions.

Expenses have to be checked and an assessment made as to whether these are reasonable. The reporting officer should be shown receipts and include them in her report for the court.

Interestingly the law does not define reasonable expenses.

Once the Reporting Officer has completed his/her enquires a report is written and filed with the Family Court. If complications arise for example that the surrogate will not give her consent to the making of the order the case is transferred to a higher court.

Once the order is granted the applicants for the first time in their baby’s life hold parental responsibility for him or her and the surrogate has no further legal responsibility for the child.

To conclude

Only couples can apply for a parental responsibility in respect to surrogacy and therefore single men and women are excluded which seems unfair when for example adoption allows for both to apply.

The regulations in respect to finances is vague and even if the surrogate makes huge profits the only option open to the court is not to grant the parental responsibility order which leaves the child and the applicants in limbo particularly as they cannot reapply once the six week time period has ended.

The whole issue of who holds parental responsibility for the child from birth until an order is granted is of concern leaving the child in a vulnerable situation.

The option of surrogacy is for many couples the only option that is available to them to experience parenthood and yet the law is not well thought through leaving both the child and the prospective parents in a vulnerable situation until a parental responsibility order is granted by the Court.