Surrogacy

You may consider having a child through a surrogacy agreement and I can assist in this special and emotional journey. I can help you through the process of obtaining a parental order. A parental order will confirm your legal status as parents of your child conceived through surrogacy.

Surrogacy is the process by which a woman called a surrogate carries and delivers a baby for someone else, the intention being that after birth the child’s parental responsibility will be met by that other person.

In England surrogacy is regulated by the Surrogacy Arrangements Act 1985 and the Human Fertilisation Embryology Act 2008.

There are 2 types of surrogacy:

• Traditional surrogacy: the surrogate uses her own egg and is the genetic mother of the child.
• Gestational surrogacy: the egg comes from a donor.

Who can use a surrogacy process?

Surrogacy is opened to married couples, to civil partners since 2010, to “those in an enduring family relationship” and since 2019 to single parents (provided you have contributed with your own gametes). Whether you are in a same-sex relationship or a different-sex relationship, you can have a surrogacy agreement.

You shall be aware that commercial surrogacy is illegal in England. You cannot pay the surrogate more than her reasonable expenses and solicitors cannot take part in any negotiation in the surrogacy agreement. In England your surrogacy agreement is not legally binding.

I work with highly experienced counsel when difficulties arise in getting your parental order (for example if you separate with your partner before obtaining the parental order, if the surrogate does not confirm her consent to extinguish her parental rights, if you have paid more than the Court will see as reasonable expenses..). It is crucial to act quickly and I am very reactive to secure parental rights.

Conditions to obtain a parental order

• One of you as the intended parents is domiciled (link to glossary?) in England. Surrogacy is illegal in France and legal in England. If you are French and your partner is domiciled in England, you can go through a surrogacy process and then have your parental order recognised in France.
• You have paid no more than reasonable expenses to the surrogate
• The child is living with you at the time of the application.
• The surrogate (and her husband or partner) have given full and informed consent after the child is 6 weeks old.
• You make your application for parental order before 6 months from the birth.

You need to have a parental order to remove the parental responsibility from the birth mother and to vest these rights. You need to be aware that until the parental order is made, the surrogate will be the legal parent of your child. If the surrogate is married or is in a civil partnership, her spouse or partner will also need to give consent for the parental order.

Court process

I can assist you in obtaining your parental order. You will need to file an application at court and inform (serve) the surrogate mother. The court will then ask CAFCASS ( link to glossary?) to make some checks. The CAFCASS officer will contact you and will contact the surrogate mother. The officer will check that your baby lives in your home and will verify that only reasonable expenses have been paid to the surrogate mother. There will be a direction appointment at court and the judge will ask you to file a statement explaining your background and your reasons to apply for a parental order. I can assist you with the drafting.

If the court is satisfied you meet all conditions and that all requirements are met, you will obtain a parental order. This will remove the parental rights of the surrogate mother, and you will then have full legal responsibility for your baby.

Recognition in France

If you are French and your partner is British, you may want to apply for a French passport for your baby and to have your order fully recognised in France. I can assist and file in front of the French court an application for exequatur. This is a long process that needs to be well prepared from the outset to avoid further delays. Generally the proceedings are one year long. You shall take legal advice as soon as you have obtained your parental order and I can represent you in France.

Reform of Surrogacy?

Because surrogacy is used more and more and because all parties involved must be protected and also because international surrogacy has so many different rules, the law commission prepared a report. A law reform and a draft legislation were published on 29 March 2023. This is a considerable piece of work you can consul here: https://lawcom.gov.uk/project/surrogacy/

The key proposals for the reform are:

• Creation of a new pathway to legal parenthood for domestic arrangements which allow intended parents to be recognised as the legal parents from birth.
• More clarity and transparency about the payments that can be made.
• Creation of regulated bodies (Regulated Surrogacy Organisations) of non-profit organisatiosn that will look at the surrogacy arrangements and will provide support for all parties.
• Possibility to make a parental order without the consent of the surrogate mother provided the welfare of the child requires that order to be made.
• Creation of a new surrogacy register to allow access information about the child’s origins.

This is a reform and the government may choose other priorities before working on this draft legislation…

If you consider surrogacy and wants some information, if you have already an arrangement and needs help to obtain your parental order, feel free to contact me. I am here to assist you.