THE BIG ISSUE
Surrogacy law is an uneven legal playing field for would-be LGBT parents, says Annah Cheatham, Associate of Gay Lawyers, a division of Giambrone
Surrogacy and the law
Although surrogacy has flung open the door to LGBT couples and single individuals wanting to start a family, from a legal perspective, Britain is lukewarm to the practice. The law governing surrogacy in the UK, the Human Fertilisation and Embryology Act 2008, was drafted when surrogacy arrangements were tolerated but not encouraged, and this means that surrogacy in the UK is a leap of faith, with would-be LGBT parents encountering several obstacles.
For instance, although surrogacy is legal in the UK, any surrogacy contract is unenforceable — instead, all parties have to trust that the agreement will be fulfilled. The law also states that the birth mother is the child’s legal parent, and if she is married or in a civil partnership, her spouse will be the child’s second parent at birth. To be recognised by law as the child’s parents, the would-be parent or parents have to apply for a parental order after birth. The default position for this is that there must be a genetic link between the child and the proud new parents (that is, one person must be either the egg or sperm donor). If there is no genetic link, then adoption is the only option for obtaining parental status.
Furthermore, British law also states that paying a surrogate to carry a child is illegal. Although reasonable expenses are permitted, there is no definition of “reasonable” — the family court decides and authorises payments prior to making a parental order.
With this in mind, it’s not surprising that some pursue surrogacy abroad, but it remains an area of law that varies considerably around the world. Some countries do not have specific laws addressing surrogacy; others ban any commercial contract, but allow compassionate surrogacy where no money changes hands; and other countries have a total ban on any kind of surrogacy. Where commercial surrogacy is allowed, the situation varies considerably. Another problem is that countries who once adopted a liberal approach to surrogacy have now back-tracked. In Thailand, for instance, commercial surrogacy is no longer permitted; only altruistic surrogacy is allowed – and is restricted to Thai couples only. Similarly, Cambodia, Nepal, Mexico and India have banned commercial surrogacy for foreigners.
Before embarking on surrogacy overseas, potential parents must be careful to sweep away any foreseeable legal complications. Absolutely all angles must be considered, including the nationality of the baby and how the immigration process to bring the child into the country of residence works. Nobody wants to be at the border with a newborn to find that a large number of hoops have to be jumped through before the baby can enter the country. It is imperative that parents observe the correct processes so that they are recognised as the legal parents of their baby.
Back in the UK, the minefield that illconsidered surrogacy poses was starkly illustrated in a matter that Gay Lawyers dealt with. The firm was instructed by a gay couple regarding their surrogacy arrangement. The married men wished to have a child. However, one partner was an older man, which ruled out a surrogacy agency. Instead, a close mutual friend
“In Thailand, commercial surrogacy is no longer permitted”
offered to act as a surrogate for the couple. Conception was achieved by the surrogate mother employing a do-it-yourself procedure.
The baby was born and an application for a parental order was requested. The delighted couple took possession of the child and the application for the parental order was imminent when a DNA test of the presumed parent revealed that he was not the father. On hearing about this, after much consideration, I felt that there might be a legal remedy. However, a further bombshell erupted when the other proposed parent was unwilling to bring up a child that had no genetic 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 and spectacular failures, including cases of surrogates refusing to part with the baby and prospective parents rejecting disabled children.
However, in the UK, there may finally be hope on the horizon. Published last year, the
Law Commission’s report of interim proposals into surrogacy includes the creation of a new pathway to legal parenthood, which would allow the intended parents to be the child’s legal parents from birth, improving certainty both for them and the surrogate. It is hoped that the final report will contain proposals that will bring the law in line with today’s thinking about this sensitive and complex area.