Families come in all shapes and sizes and, for many couples, surrogacy is the best (and sometimes only) option. The recent Law Commission Report: Building Families Through Surrogacy: A New Law, which was published in March 2023, aims to reform surrogacy law in the UK but the pathway to legal parenthood, effective estate planning and navigating immigration law for their new child or children, remains long and winding.
So here are some of the key points to bear in mind before embarking on your family’s surrogacy journey:
Different surrogacy and assisted reproduction arrangements
There are two types of surrogacy arrangement: full surrogacy, where there is no genetic connection between the child and the surrogate; and partial surrogacy, where a surrogate’s egg is fertilised by sperm of the intended father or donor. Assisted reproduction can take many forms and is used by opposite and same sex couples and individuals.
Ensuring your legal status as a parent
Whichever route you chose, you need to be clear about legal parenthood. If you are a family in the UK, in most cases the surrogate will be the legal mother as an until you get a parental order from the family court and this is the case even if you are using your own eggs and/or sperm. If the surrogate is married or in a civil partnership, then her spouse or civil partner will automatically be the second legal parent until the parental order is granted (unless that spouse/partner did not consent to the surrogacy). It is possible to nominate a second legal parent (which could be the intended mother/s or father/s) but this needs to be done before the pregnancy. So it is important to think ahead.
And whereas previously the law required two people to apply for a parental order, it is now possible for a single person involved a surrogacy arrangement to apply for a parental order if they are a biological parent.
If you cannot get a parental order, the other way to ensure your legal status as a parent is through adoption which can be drawn out, so best to get your parental order ducks in a row if you can.
Consent – is everyone agreed?
Consent to IVF treatment by each of a couple is required in order for both to qualify as legal parents and this consent needs to be clear and evidenced. It is important to fill out the right form at the right time –too many families have been thwarted in their legal parenthood journey by inadequate processing of the Human Fertilisation and Embryology Authority’s standardised consent forms, different policies and protocols adopted by UK licensed clinics and clerical error, resulting in parental status following IVF being uncertain, leading to unexpected and costly litigation.
Consent can be withdrawn and can also be challenged, which can happen when a relationship breaks down and one parent casts doubt on the other’s parental status. Helpfully the Court of Appeal has recently clarified that consent can be inferred from how you are as a family. So, even if consent is challenged, if you are in a marriage or civil partnership and you both play a part in the treatment cycle and then are integrated in your children’s lives, that is enough even if you cannot produce any formal consent to your partner’s fertility treatment.
Are you an international family or seeking surrogacy abroad?
Each country has its own particular surrogacy and legal parenthood laws. The Foreign and Commonwealth Office has published guidance for those considering surrogacy treatment abroad, so you can find out more information there, but be aware that even if you are named as legal parent/s on any foreign birth certificate, you will still need to apply for a UK parental order. This is because any overseas surrogacy orders will not automatically be recognised here. If you hold a nationality in another country, then it will be important to find out what the status of any children born following surrogacy in that country. This is especially the case for same sex couples (and especially parents without genetic connections with their child) in jurisdictions where same sex relationships are not recognised.
Immigration checklist
Individual legal advice tailored to your and your family’s circumstances will be key to your family planning if you are considering surrogacy abroad as it will be important to ensure that your child is entitled to enter and remain within the UK. Usually this entitlement will be linked to the status of the intended parents, but not always. It is likely that you will need to apply for a UK passport for your child (if they are entitled to British Citizenship) from abroad. This can take many months, so planning ahead, with a realistic timetable, will be key. Where your child is not eligible for a UK passport, other legal avenues will need to be explored. So, in addition to ensuring your legal parental status, you need to make sure that immigration issues are sorted out too and seeking specialist legal advice can ensure that you avoid stress and expense further down the line.
Wills and succession issues
For UK couples intending to become parents using surrogacy arrangements, it will be important to make a will which ensures that any children born through surrogacy clearly intended to benefit from the moment of conception. This is dealt with by being clear and specific in the definition of ‘children’ in the will. It may be sensible to include a discretionary trust in the will and to sign a letter of wishes declaring the intention that the estate be held for the benefit of the child as soon as it is born, even before parental orders have been obtained.
For families with international connections, it will also be necessary to consider international succession laws and whether any children born following surrogacy arrangements will still be treated as beneficiaries under any wills or forced heirship provisions.
As you embark on the surrogacy journey, all of the legal aspects that prospective parents need to consider may seem very overwhelming. It is crucial that you take timely legal advice to understand the potential challenges and difficulties from the outset, ensuring the process is as stress-free as possible – and you can enjoy your family’s exciting new chapter.
For further information, please contact:
Suzanne Todd, Partner, Withersworldwide
suzanne.todd@withersworldwide.com
