With the news in December 2010 that 63-year-old pop star Elton John and his civil partner David Furnish had become the proud parents of a baby born through a surrogacy agreement, the ramifications of such births within English and Welsh family law have been subjected to the media spotlight.
Family law solicitors and family affairs correspondents called for the law surrounding surrogate births to be reformed and, while some campaigning groups suggested that the High Court decision, made just a few weeks earlier, to allow certain payments for foreign surrogate births turned the issue into one of commercial “baby buying”, many family law practitioners spoke out about the emotional difficulty of the issue as well as its legal complexities.
The Surrogacy Arrangements Act 1985 was, some would say, a hastily arranged statute put in place after the famous Baby Cotton surrogacy case and many family lawyers argue that it does not state complete legal answers to the issues faced by surrogates or prospective parents.
The Human Fertilisation and Embryology Act 1990 is concerned with the regulation of assisted reproduction births and contains laws regarding parental orders designed for incidences of surrogate births. The HFE Act 2008 has since updated both pieces of legislation. In April 2010 phase three of the HFE Act was implemented which allowed people in same sex relationships and unmarried couples to be legally treated as parents of children born to a surrogate mother.
English and Welsh family law and surrogacy
The question of surrogacy is complex. While it is not illegal to enter into a surrogacy agreement, either as a prospective parent or as the surrogate, it is illegal to arrange surrogate agreements commercially. Further, parents who pay more than “reasonable” expenses to their surrogate may find they face prosecution and an agency found to be charging any sort of fee for arranging a surrogacy agreement may also be subject to legal action.
Surrogacy agreements, under the Surrogacy Arrangements Act 1985, are not enforceable. So if the surrogacy is not carried out as agreed in any way, for instance prospective parents fail to pay an arranged expense or the surrogate mother refuses to relinquish the baby after birth, the court will not uphold the terms of the surrogacy agreement as it might in other legal contracts.
However, the court may become involved in a surrogacy dispute to decide where the child should live and this decision will be made under the principles of welfare.
English and Welsh family law favours parturition – the person who gives birth to a child is always the legal mother – and, in most cases, if parents of a surrogate baby wish to become legal parents of the child they will need to apply for a parental order. Issues of paternity, i.e, who donated sperm for the pregnancy, may be relevant to determine whether prospective parents will need to apply to the family law court for permission to make an application for a parental order.
Healys’ family solicitors for family law advice on surrogacy
Although some surrogacy agreements are straightforward and the whole process is completed without complication, the legal considerations of entering into such an arrangement are manifold and complex.
If you are thinking of becoming a surrogate mother, or considering starting your family or adding to an existing one through surrogacy, the advice of an experienced family lawyer may be invaluable.
As a full service law firm we have the benefit of being able to draw on the considerable skills and expertise of our colleagues in other departments for advice on the many aspects of complex family issues. This ensures that we can provide you with a full and comprehensive service.
Healys has offices in both central London and Brighton and regularly represents clients in both the High Court and in local courts across the south east of England and beyond. We have family department clients in the UK and overseas.
For legal advice on surrogacy agreements and all matters of family law please contact Catherine Taylor on 01273 669 124 or email firstname.lastname@example.org for Brighton. For London please contact Jane Sanders on 020 7822 4107 or email email@example.com.