Surrogacy
AMENDMENT
Section 1, Legislation was updated in May 2019 in line with the Human Fertilisation & Embryology Act 2008 (Remedial) Order 2018. This enables a sole applicant to apply for a parental order which transfers legal parenthood after a surrogacy arrangement. Previously, only couples were eligible to apply.
Contents
- Legislation
- Adoption and Private Fostering in Surrogacy Cases
- Safeguarding Considerations
- Further Information
1. Legislation
The main legislation which applies is the Surrogacy Arrangements Act 1985.
Surrogacy is legal in the UK, with reasonable expenses only being paid to the surrogate mother. Surrogacy arrangements are not legally enforceable. It is illegal to advertise for a surrogate in the UK. Most people have a family member or friend willing to carry the child, others join a surrogacy organisation.
Partial surrogacy uses the egg of the surrogate mother and the sperm of the intended father, thus the baby is biologically related to the intended father and the surrogate mother.
Total surrogacy uses the egg of the intended mother combined with the sperm of her husband or donor sperm. A baby conceived by this method has no biological connection to the surrogate mother.
In a surrogacy arrangement, if the intended parents wish to become the legal parents of the child, they may either apply for a parental order or apply to adopt the child. The effect of the order is to transfer parental responsibility to the intended parents, providing certain conditions are met.
To obtain a parental order at least one of the commissioning couple must be genetically related to the baby, i.e. as the egg or the sperm provider.
If the commissioning couple cannot apply for a parental order because neither are genetically related to the child, then adoption is the only option and a registered adoption agency must be involved.
With effect from 3 January 2019, the Human Fertilisation & Embryology Act 2008 (Remedial) Order 2018 enables a sole applicant to apply for a parental order which transfers legal parenthood after a surrogacy arrangement. Previously, only couples were eligible to apply.
2. Adoption and Private Fostering in Surrogacy Cases
The surrogate mother may choose to place her child with commissioning parents for adoption. If so, a registered adoption agency must be involved in the surrogacy process; otherwise, by virtue of Section 11 of the Adoption Act 1976, unless the child was placed pursuant to an order of the High Court or with a relative, the placement is illegal. If the arrangement does not go so far as to be an arrangement for adoption, it may be a private fostering arrangement (see Children Living Away from Home Procedure). Not withstanding the illegality of the private adoption arrangement, if the commissioning parents wish to adopt the child and apply for an Adoption Order, they must give notice to the local authority who must then investigate and report to the court in the normal way. If the surrogate mother changes her mind after the child has been placed with the commissioning parents, her consent to adoption must be dispensed with by the court before making an Adoption Order.
As regard surrogacy and fostering arrangements, the commissioning parents would be entitled to seek care and control of the child under the inherent jurisdiction of the High Court. However, the local authority can intervene and obtain an Emergency Protection Order while carrying out enquires about the suitability of the commissioning parents.
3. Safeguarding Considerations
A professional in any agency may become aware of the surrogacy arrangement and may have concerns about:
The suitability of the intended parents to care for the child:
- Conflict between the adults in a surrogacy arrangement e.g. that the surrogate mother is under pressure to relinquish the child against her will; and/or
- The amount being paid for the child;
- An unborn or newborn child in these circumstances could be at risk of physical and emotional abuse and / or neglect (see Neglect);
- The emotional distress that could be caused to paternal children of the surrogate mother. (Seeing their mother pregnant, preparing for a baby, baby given away, questions about brother sister relationship).
In these circumstances, all staff have a responsibility to safeguard and promote the welfare of the unborn or newborn child and other children, and professionals should make a referral to First Contact.
Any professional who becomes aware of the arrangement should confirm whether the 'commissioning couple' intend to apply for an Adoption Order or a Parental Order. They should also contact the Local Authority area in which the 'commissioning couple' reside to establish if there are any concerns and to log with that Local Authority that this is the intended arrangement.
Similarly, If hospital staff become aware a baby about to be, or just born is the product of 'commissioning' and have grounds to doubt commissioners' identity / suitability to provide care / or degree of voluntarism (payment beyond reasonable expenses is unlawful), they should contact First Contact.
The actions above are of particular importance should it become apparent that the surrogacy arrangement has not involved one of the three approved organisations in the UK who help couples to find a match Brilliant Beginnings, COTS and Surrogacy UK.
Agency responses should be proportionate to what are likely to be very individual circumstances, and legal advice should always be sought.