Surrogacy outside the UK

Surrogacy outside the UK

The main countries that permit altruistic surrogacy include Australia, Canada (save for Quebec, where all surrogacy contracts are unenforceable), Georgia, Greece, New Zealand and the United Kingdom.  In those countries commercial surrogacy is illegal. The popular destination for altruistic and commercial surrogacy is the United States, although it is not accepted in every state.  The states that permit commercial surrogacy include California, Illinois, Arkansas, Maryland and New Hampshire.

The countries that do not permit either commercial or altruistic surrogacy include: Finland, France, Hong Kong, Hungary, Iceland, Italy and Pakistan.  The laws in each country can change very quickly, so keeping abreast of developments is crucial.

The most well-established state in the United States for commercial surrogacy is California.  California is known as the ‘golden state for surrogacy’ due to its popularity for commercial surrogacy arrangements.  The laws in California make it possible for the commissioning parents to a surrogacy arrangement, regardless of marital status and/or sexual orientation, to establish legal parental rights prior to the birth of the child and without the need to go through the legal process for adoption.

However, California has only become well-established as a result of a number of cases which led to the legal reforms.  In the case of Johnson v Calvert [1993], the surrogate opposed the commissioning parents’ application for a declaration they were the natural parents of the child, with the court finding against the surrogate. In the case of US v Erickson [2011], an attorney pleaded guilty to ‘conspiracy to commit fraud’ and she admitted that she and her co-conspirators had used gestational carriers to create an inventory of unborn babies that they would sell for over $100,000.

When interpreting a USA surrogacy arrangement and deciding whether that arrangement should result in the making of a Parental Order, English courts will take into account all the factors set out in s.54 of Human Fertilisation and Embryology Act 2008 and determine if they are satisfied and whether the child’s lifelong welfare requires such an order to be made.  The judge will have the benefit of the Parental Order Reporter and their report when considering whether the making of such an order would be beneficial for the child’s lifelong welfare.

Before embarking on this wonderful journey of surrogacy, the obtaining of legal advice is vital to ensure that steps are in place to achieve the Parental Order. For more information, or a preliminary, confidential discussion contact our Fertility expert Anne-Marie Hamer.

What is a parental order?

What is a parental order?

To begin with, it is important to point out that a parental order is not about access to surrogacy.  The granting of a parental order affects the transfer of parental responsibility and legal parenthood to the commissioning/intended parent of a child born out of a surrogacy arrangement.  The granting of the parental order extinguishes the status of the surrogate mother (and her husband or civil partner, where appropriate).  By the making of a parental order, the intended parents are treated as though the child was born to them in first instance.

The parental order is only sought after the child is born and the intended parents are expected to make an application within six months of the birth of the child.  Prior to the case of Re Z (A Child) (No.2) [2016] EWHC 1191 Fam, single adults faced some difficulty in obtaining a parental order under section 54(1) and (2) of the Human Fertilisations and Embryology Act 2008.  The importance of Re Z is significant for single adults wishing to use the surrogacy process to build a family.  The President of the Family Division, Sir James Munby, declared in this case that certain provisions of one of the two principal statutes governing the area were incompatible with a father and child’s rights pursuant to the European Convention of Human Rights.

This ruling has changed the landscape to the granting of parental order, because the courts are now prepared to consider the making of such orders for single adults.  Prior to this case, a single adult wishing to have a family was reliant on the process of adoption under the Adoption Act 1926.

As it stands, practitioners are eagerly awaiting the proposed amendments to statute and following the Law Commission’s consultation.

For single adults considering surrogacy as a way forward for them, it is vitally important to obtain legal advice from a family law specialist. For more information, or a preliminary, confidential discussion contact our Fertility expert Anne-Marie Hamer.

Protecting the family farm…Pre-Nuptial Agreement?

Protecting the family farm…Pre-Nuptial Agreement?

It is not the most romantic topic to discuss when you have just become engaged but you may need to consider whether a Pre-Nuptial agreement is something that you might need to discuss with your fiancé.

It might be a second marriage, or it might you have inherited the family farm and in the event of a marriage break-down, you will wish to retain the farm for your children? In these cases, you might want to enter into a pre-nuptial agreement to set out at the outset that those assets would remain yours in event of a breakdown of the relationship.

A pre-nuptial agreement sets out how a couple’s assets will be divided should they separate or divorce.

Although pre-nuptial agreements are not legally binding in the UK, they are increasingly being recognised and upheld in the courts provided certain conditions have been met.

These conditions include entering into the pre-nuptial agreement in plenty of time before the wedding. If you are forced to sign a pre-nuptial the night before your wedding, it is unlikely that a court would uphold the agreement!

There should also be full and frank financial disclosure so that both parties are aware of the assets which would be retained by either party.

It is important that both parties take independent and separate legal advice about the agreement. This is particularly important if you are being asked to sign a pre-nuptial agreement as a pre-nuptial agreement can limit a financial settlement that might otherwise have be ordered by a court on a divorce. You could therefore be agreeing to receive less than you might be entitled to.

The court, on a divorce, will consider all the circumstances surrounding the pre-nuptial agreement and the courts will even reduce an amount one spouse is to receive because of the existence of a pre-nuptial agreement even if the court thinks the pre-nuptial cannot be followed exactly.

It is therefore extremely important that legal advice is sought about a pre-nuptial agreement. However entering into a pre-nuptial agreement makes it clear what your wishes are and the wishes of your fiancé. We would say it is better to have one than not.

For more information, or some preliminary, confidential advice please contact a member of our Family Team, or your local office.