What new guidelines mean for hopeful parents considering surrogacy

Jeremy Ford, specialist in child matters, including issues of parental responsibility, child abduction and contact welcomes the recent guidance from the government for those considering surrogacy. Here he describes the issues and what parents thinking about surrogacy need to consider.

For those couples who are having problems conceiving a child naturally, the path to parenthood is fraught with confusion and difficulty. Some consider surrogacy – this is when a woman carries a baby for someone who is unable to conceive or carry a child themselves.

The government has issued long awaited guidance on how to start a family using a surrogate. It comprises two very helpful documents as a guide to those considering embarking upon the surrogacy process to start or complement their family. The first being The surrogacy pathway: surrogacy and the legal process for intended parents and surrogates in England and Wales and the second Care in surrogacy: guidance for the care of surrogates and intended parents in surrogate births in England and Wales

Despite this welcome guidance the law is still confusing and has led to instances where couples have engaged in the surrogacy process, home and abroad, only to have the happy event of the birth of a longed for child marred by legal complications. An application to the court for a parental order is required to ensure that the parents are given the status as the legal parents of their child. To obtain a parental order the intended parents need to satisfy s.54 Human Fertilisation and Embryology Act 2008.

The majority of surrogacy cases are plain sailing. However, when it goes wrong it goes really wrong. I was appointed Advocate to the Court in the leading case in the High Court of D and L (Surrogacy) [2012] EWHC 2631 (Fam) in which a parental order was granted to the intended parents which conferred their rights as parents to their twin boys despite the inability of the court to obtain the consent of the surrogate (in India) who could not be found to obtain her consent.

I acted on behalf of the child in the High Court case of WT (A Child), Re [2014] EWHC 1303 (Fam) in similar circumstances where the intended parents had difficulties in obtaining the consent of their surrogate. A parental order was made but only after multiple hearings and significant worry for the parents.

Mrs Justice Theis gave this warning in her judgment, “Those who embark on surrogacy arrangements abroad need to be alive to the pitfalls there can be with such an arrangement and it may be wise for commissioning parents to consider taking specialist advice at the earliest opportunity, both here and in the jurisdiction where the arrangement is entered into. To proceed in the absence of such advice can lead to significant emotional and financial hardship and further delay.”

I have been involved in many other surrogacy cases acting as an Advocate to the Court or on behalf of the child where there have been issues ranging from consent to the domicile of the intended parents. All cases had fallen foul of, or legal argument was required, to satisfy the court that every aspect of s.54 Human Fertilisation and Embryology Act 2008 had been met. Without a parental order either or both of the intended parents will not be considered as their child’s legal parent. This sad scenario arose in the case of Y v Z & Ors [2017] EWFC 60 where I acted on behalf of the child.

If you are considering the surrogacy process it is important that you seek legal advice at an early stage to prevent difficulties in what will already be an emotional and incredibly worthwhile journey.

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