I attended the Families Through Surrogacy conference in March and heard from a number of fantastic speakers about issues ranging from infertility to being a surrogate mother, having children through surrogacy, advising on surrogacy in England and abroad and obtaining a passport for your child. 

The surrogacy clients we advise at Kingsley Napley are intended parents who come to us for help with the parental order process in England and Wales and obtaining a British passport for their child and/or a visa to allow their child to return to the UK with them.  As we never get the chance to meet surrogate mothers as part of the process, the Families Through Surrogacy conference was a great opportunity for me to hear from them – including why they choose to be surrogates and how their experiences differ.

We heard from a number of couples who had had children through surrogacy about why they chose surrogacy and what the journey involved for them.  Guests had the opportunity to ask questions and among the ‘hot topics’ were the amount of overall costs involved and the time spent abroad. 

Our immigration team advises on the various immigration aspects of surrogacy arrangements and it was interesting to hear from intended parents about how different their experiences were in this regard.  Some obtained passports (abroad) within a few days and others had to wait weeks for British passports.  The head of the policy team for Her Majesty’s Passport Office spoke about the current pitfalls and gave the audience some tips about how best to complete passport applications for children born through surrogacy.  From our experience, immigration issues often need to be considered at the beginning of the ‘surrogacy journey’ so that intended parents are fully aware of and prepared for the amount of time they may need to spend abroad. Early preparation is also key to ensuring the immigration and nationality applications can be made as quickly and efficiently as possible once a child has been born.

Surrogacy arrangements in Greece - a comparative view

Lawyers from Greece talked about the recent changes there.  It was interesting to hear about how practices differ in countries which are just across Europe from us.  Like England, Greece only allows altruistic rather than commercial surrogacy arrangements in-country, which means that women cannot be receive payment for being a surrogate (save for having their reasonable expenses reimbursed).  Unlike England, surrogates are not allowed to use their own genetic material and therefore a surrogate cannot use her own egg.  Also unlike England however, there is no obligation on intended parents to use their genetic material - and so the child can be conceived using donor eggs and donor sperm (one of the requirements for parental order in England and Wales is that the gametes of at least one of the intended parents must be used to create the embryo (section 54(1)(b) Human Fertilisation and Embryology Act 2008 “HFEA”)).  One final difference between our two countries is that single women can apply to court in Greece for a declaration of their parentage in respect of children born through surrogacy.  Single men cannot apply.  Single parents, both mothers and fathers, cannot currently apply for a parental order in England. 

The legal position on surrogacy in England and Wales – changes on the horizon?

Finally, we heard about the legal position in England and Wales and talked about the possible changes to surrogacy law in the future to bring us more in line with social patterns.  We talked about the recent case of AB and CD v CT in which the court allowed the making of a parental order despite the application being made more than two years out of time.  The case of B v V (Surrogacy: Adoption) in which a single man had a child who was carried by his mother as the gestational surrogate was also discussed.

Possible future changes discussed were:

  • the removal of the six month time limit provided for in section 54(3) of HFEA;
  • a change to the law to allow single parents to apply for a parental order (currently prohibited because section 54(1) provides for an application made by two people); and
  • the introduction of a pre-birth application process, either for the parental order or the passport (currently the applications for a parental order and the passport cannot be made until after the child’s birth).

While the English courts have started to use their discretion in surrogacy cases, the law is still arguably out of date.  We’ll have to watch this space but it was encouraging to participate in the debate and hear the views of agencies, parents and experts in the field.