International surrogacy laws
Surrogacy often features heavily in discussions amongst aspiring parents wishing to have children through alternative measures.
At its best, surrogacy provides couples the opportunity to realise their dream family. This article is not aimed to dissuade intended parents from considering surrogacy, but to highlight some of the tricky issues involved in international surrogacy arrangements.
So what is an international surrogacy arrangement?
It is not uncommon for intended parents to search beyond their country’s borders for a surrogate and/or an agency which can facilitate such an arrangement. Essentially an international surrogacy arrangement is therefore one which involves families living in more than one jurisdiction.
Why do couples do this?
The attitude to surrogacy ranges profoundly from country to country. In some jurisdictions, surrogacy is illegal, such as in France. In others, including Ukraine and some states in the US, public attitudes differ considerably and surrogacy may not only be permitted, legal remedies may be available to intended parents including court orders declaring them as the child’s legal parents and their registration as the parents on the child’s birth certificate.
What about in the UK?
In the UK, the law adopts a mixed approach. While taking part in a surrogacy arrangement is not in itself illegal, negotiating a surrogacy arrangement for a commercial gain is a criminal offense. Surrogacy forums in the UK therefore operate by linking up intended parents with potential surrogates on a strictly not-for-profit basis. In addition, any agreement reached with a surrogate (even if written down and signed by all parties) will be unenforceable and there have been cases where a surrogate has refused to ‘handover’ a child.
However, intended parents are able to be recognised as the child’s legal parents (this is discussed further below).
Why do these restrictions on commercial surrogacy exist in the UK?
Money talks. But the language it speaks can sometimes appeal to humanity’s darker tendencies. The surrogacy ring discovered in Thailand in 2011 provides an extreme example of vulnerable women being forced, pressured and tricked into being surrogate mothers for money.
The law in the UK therefore tries to find a balance between the need to protect vulnerable surrogates from exploitation while supporting the many surrogates who freely choose to help others realise their dream family.
Who exactly are the legal parents?
One of the key issues in any international surrogacy arrangement is legal parenthood. It is always worth getting legal advice before you embark on such an arrangement in both the country you intend to live as a family (and possibly any other country you may plan to move to in the future) and the country where the surrogate is based in order to ascertain who the legal parents will be. In some countries, it may be possible to register the intended parents on the child’s birth certificate.
Under English law, the surrogate (i.e. the woman who carries the child) will be the legal mother. The other legal parent will be the person married to the surrogate or in a civil partnership with the surrogate at the time of treatment unless they did not consent to the treatment. When the surrogate is unmarried and not in a civil partnership the intended mother or intended father can in certain circumstances be designated the legal father/second parent from birth.
Can this position be altered in England and Wales?
Yes. The English court can make a ‘parental order’ extinguishing the role of the surrogate mother (and her husband or civil partner if applicable) as the legal parent and making both the intended parents the child’s legal parents (which will give them parental responsibility for the child.
However, the circumstances in which an application for a parental order may be made are strictly defined. The order is only currently available for couples (married, civil partners or a couple living as partners in an enduring family relationship), the application must be made within 6 months of the child’s birth and the surrogate mother must give her consent. There are also other requirements not referred to here.
Can I pay the Surrogate?
One of the trickiest issues that arise out of international surrogacy arrangements is payments made to surrogates.
In England, the law allows intended parents to pay a Surrogate her reasonable expenses. While the court can retrospectively authorise expenses higher than that, care needs to be taken as the court may decide not to authorise those payments and as a result may refuse to grant a parental order.
Seek early legal advice to avoid future complications
Early legal advice should be sought in both the country the surrogate is based and the country you wish to live in with the child (and possibly any other country you intend to move to). Be aware that attitudes toward surrogacy across the globe are always changing – for example, India, once a popular destination for intended parents, has since taken measures which have restricted the practice of surrogacy in that country.
Early advice will also help to ensure that important legal deadlines are not missed and to ensure that the whole legal package, including dealing with any immigration issues that are likely to arise out of an international surrogacy arrangement, is organised as best as possible from the start.
If you would like to know more about the legal aspects of surrogacy or are contemplating surrogacy please contact Richard Kwan at Richard.firstname.lastname@example.org or Helen Blackburn at email@example.com.
The contents of this article are for reference purposes only. They do not constitute legal advice and should not be relied on as such. Legal advice should always be sought for your specific circumstance.
Sponsored article from The International Family Law Group
Richard Kwan is a solicitor at iFLG. He graduated in law from University College London, where he was awarded the Faculty of Laws Research prize for his dissertation on family law. He completed his legal studies at BPP Law School. Richard advises on divorce, financial and forum and children matters. He also specialises in prenuptial agreements, cohabitation and same sex matters.
The International Family Law Group LLP
© Dec 2017
The International Family Law Group LLP is a specialist law firm, based in London, looking after international and national families. iFLG handles a plethora of financial and forum matters linked to a relationship breakdown and matters relating to children (child relocation, abduction, adoption, surrogacy, contact and residence issues). As accredited international family law specialists iFLG regularly receives instructions from foreign lawyers concerning matters in England and Wales. iFLG is also regularly instructed by ICACU (Central Authority for England and Wales) and we also provide expert evidence abroad in family cases.