Family law considerations of international surrogacy

8th March 2015 by

 

The law surrounding international surrogacy is complex and for parents who wish to undertake a surrogacy agreement with a foreign surrogate there can be many obstacles to them being granted recognition as the legal parents of the child.

In this article Healys family lawyers in Brighton and London take a brief look at international surrogacy and the law in England and Wales.

Why choose international surrogacy?

The advancements in reproductive medicine now mean that many couples who would previously have been unable to have a child to which they were biologically related can now undergo a gestational surrogacy, whereby eggs and/or sperm from one or both parents can be introduced into the uterus of a surrogate with no genetic connection to the donors.

Many infertile and gay couples see this form of surrogacy as a wonderful opportunity, but a combination of cost, limited availability of surrogates and the restricting legal parameters for commercial surrogacy in the UK mean that more and more couples are seeking a surrogate abroad.

Whereas the regulations surrounding international adoption are strict, the governance of international surrogacy is currently without restriction (May 2012) and certain countries even promote their likelihood as a suitable place for international surrogacy by legally protecting parents who wish to commission a surrogacy agreement in their country.

However, although the practicalities of achieving a successful birth through international surrogacy are somewhat easier than in England and Wales, English family law, as of yet, has not allowed for an easy recognition of such births in terms of parental responsibility.

In England, under the Human Fertilisation and Embryology Act 2008 (HFEA) the woman who gives birth to a child is always recognised as the mother – even where she has no biological connection to the baby. If the surrogate mother is married, the husband is also seen as the legal father of the child, unless he has expressly not consented to his wife being a surrogate.

Under s.54 of HFEA the commissioning couple may apply for a parental order to transfer parental responsibility to themselves; however, there are a number of provisions which must be fulfilled before the order can be made and even applying for the order can be a complex task in itself.

Of course, the fundamental consideration for any family court is the welfare of the child and refinements to the HFEA (Parental Orders) Regulations 2010 which apply s.1 of the Adoption and Children Act 2002 have offered the court greater abilities to overcome the complexities of this area of family law. Yet, in some difficult cases, the court may still be unable to offer the ruling which parents wish for as a result of immigration, consent and domiciliary issues.

In her article for Family Law Week Gwynneth Knowles QC of Atlantic Chambers, Liverpool, looks at various cases of international surrogacy and their legal ramifications through the English and Welsh family courts.

Her major piece of advice for commissioning couples is to seek specialist legal advice before undertaking any agreement or travelling abroad for procedures, because, once the child is born, the legal and immigration pitfalls can be a “recipe for heartache, expense and delay”.

Healys family lawyers in Brighton and London

If you would like to speak to an experienced family lawyer in Brighton or London regarding any issue relating to adoption and surrogacy or parental responsibility and parental orders, please call Healys today.

For more information on the service we provide, please contact Catherine Taylor on 01273 669 124 or email catherine.taylor@healys.com for Brighton. For London please contact Jane Sanders on 020 7822 4107 or email jane.sanders@healys.com.