With more people facing fertility issues and couples increasingly seeking alternative routes to have children, there is a growing number of UK families created through surrogacy.
In the last three years, the number of children being born through surrogacy has almost tripled according to figures from the Ministry of Justice Family Court.
Surrogacy is no longer a taboo – along with adoption it has become an accepted alternative to traditional child birth. It has even recently featured in the Archers on Radio 4 and has been put into the headlines by Kim Kardashian and Kanye West who have recently used a surrogate to have their baby, Chicago.
The number of people choosing surrogates abroad is also rising. International organisation Families Through Surrogacy has reported that over the last three years, more than 1,000 British couples have secured the services of surrogates overseas, the highest number from any European country.
If overseas surrogacy is an option you are considering, here’s our guide to some of the legal issues you will need to consider and address to ensure the process runs as smoothly as possible:
Entering into a surrogacy agreement
Lawyers in England and Wales can’t help couples enter into surrogacy arrangements, so it is crucial to take legal advice in the country where you are engaging a surrogate to ensure that as parents, you are protected.
Enforceability of a surrogacy agreement
Surrogacy agreements are not enforceable in England and Wales – that may sound troubling. Therefore you will need to consider what happens if things go wrong and the surrogate mother refuses to give up your child. The agreement may however, be enforceable where the surrogate gives birth, so always take legal advice.
Getting your child back to England and Wales
Depending on the country you choose and your personal circumstances (including your own immigration position), the options for bringing your child back to this country will vary. To help with this, you should seek expert immigration advice, especially if you’re not a British national yourself.
Becoming your child’s legal parent
Even though you may be genetically related, you will not automatically be recognised as your child’s parent under the law of England and Wales.
Your chosen surrogate will be considered as the child’s legal mother and if she is married, her spouse will automatically be the child’s second parent. What’s more, a child can only have two legal parents, meaning that at least you and/or your spouse won’t be considered as your child’s legal parents.
To address this, you will need to apply to the court for a Parental Order. This process can take several months so should be addressed at the earliest opportunity.
Applying for a Parental Order
To apply for a Parental Order there are a number of conditions to meet:
- The application must be made within 6 months of your child’s birth
- You need to apply as a couple
- The child must have its home with both of you
- You must obtain the consent of the surrogate and this can’t be given within 6 weeks of her giving birth
- Either you or your partner must be of UK domicile
- Money cannot be given to the surrogate apart from to cover reasonably incurred expenses
The prospect of engaging a surrogate overseas can be stressful, but things can run smoothly and without stress if you take time to plan and prepare. It is advisable to work with a solicitor in the UK who can help you through the process, join you at meetings with international lawyers and help you apply for a Parental Order.