A recent High Court surrogacy case is a cautionary tale for couples entering into informal surrogacy arrangements. Mrs Justice King in the reported case of JP v LP, SP and CP  EWHC 595 warns of the serious legal and practical difficulties of surrogacy in the UK.
The family involved in this case entered into an informal surrogacy agreement with a friend and difficulties arose when the parents separated soon after the child's birth. The parents were not correctly advised about the legal position of parents entering into surrogacy arrangements and they were caught out by the following legal pitfalls:
- Surrogacy agreements are not enforceable in law in the UK. This is the case even where there is no genetic connection between the surrogate mother and the surrogate child.
- It is a criminal offence in the UK for a third party, including a firm of solicitors, to negotiate surrogacy arrangements on a commercial basis(i.e. for payment). These agreements can be drawn up between the surrogate and the intended parents, but they can't be drafted by solicitors or third parties for a fee.
- The surrogate mother, and no other woman, will be the child's legal mother. This remains the case unless and until the child is adopted or legal parenthood is transferred as a result of a Parental Order. Without a Parental Order, the surrogate mother will have parental responsibility for the child (all rights and responsibilities arising out of parenthood, including the right to consent to medical treatment for a child, register a child for school and make a passport application for a child.)
- To be successful in an application for a Parental Order (transferring legal parenthood to the intended parents), parents must meet the criteria set out in Section 54 of the Human Fertilisation and Embryology Act 2008. One of the criteria is a mandatory time limit for the making of the application; it must be made within 6 months of the child's birth and there is no discretion to extend this time limit. If parents do not make the application in this timescale, their options for resolving the parentage position are limited, although they could make an application for an Adoption Order or a Residence Order, in certain circumstances. A Residence Order is limited in its effect as it will not extinguish the surrogate mother's parental responsibility for the child.
In the abovementioned case, a complicated and exceptional structure was approved by the Court to resolve the legal difficulties:
- The child was made a Ward of the Court;
- The parents were granted shared residence orders;
- Parental responsibility was delegated to the parents jointly; and
- The surrogate mother was prohibited from exercising her parental responsibility without the leave of the Court.
This case highlights the dangers of entering into surrogacy agreements without specialist legal advice. The legal position in the UK is very complicated and parents should ensure they have all of the relevant advice before embarking on parenthood through surrogacy – whether this involves a surrogacy in the UK or an overseas commercial surrogacy arrangement.