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.

Medical Negligence & Surrogacy

Medical Negligence & Surrogacy

Surrogacy law not only comes into play when intended parents wish to engage in a surrogacy arrangement, it can also be considered when determining the damages claim where there has been a missed diagnosis or a late diagnosis.  In the case of XX v Whittington NHS Trust [2017] EWHC, the claimant sought damages in a civil claim to enable her and her partner to enter into a surrogacy arrangement in California, having harvested some of her eggs before undergoing chemotherapy.

The defendant, Whittington Hospital NHS Trust, admitted negligence in failing to detect signs of cancer from smear tests taken in 2008 and 2012 and biopsies in 2012 and 2013.  As a result of this negligence, the claimant developed invasive cancer of the cervix, for which she required chemo-therapy treatment which led to infertility and severe radiation damage to her bladder, bowel and vagina, preventing the claimant from carrying her own children.  The High Court had to consider a number of aspects in this case under the claim for damages and emotional trauma to the claimant, aged only 29 at the time.  The High Court awarded a total payment of £580,612.52, which incorporated a claim for two surrogacy arrangements in the UK.

The High Court rejected the argument that the claimant should be awarded damages to enter into a commercial surrogacy arrangement that would be unlawful in this jurisdiction.  However, the court did award damages to the claimant to undergo two surrogacy arrangements in the UK, totalling £74,000 and £37,000 each plus VAT for each arrangement.  It appears that the High Court placed emphasis on the fact that commercial surrogacy arrangements are still illegal in the UK and contrary to public policy.

Since that judgement was handed down, the trial judge has granted permission to appeal against the decision to refuse California surrogacy expenses and the cost of surrogacy using donor eggs. In granting that permission to appeal, the judge concluded that there was a public interest in the higher appellate courts examining the question of recover-ability of damages for the cost of commercial surrogacy in a jurisdiction where this activity is lawful.

It will be interesting to see what happens next in terms of any awards for overseas surrogacy arrangements which will attract a much higher award of payment.

The use of a family law expert in this case was vital to identifying costs of surrogacy in the UK and abroad, and is an area in which most negligence lawyers need to be familiar. For more information, or some preliminary, confidential advice please contact Anne-Marie Hamer, our Fertility & Surrogacy expert.

Surrogacy – Case Study

Surrogacy – Case Study

Mike and Marie have been trying to conceive for a number of years with IVF treatments all failing, and now they are looking to have a surrogacy arrangement.

Is this legal in the UK? Maria asks.

Altruistic surrogacy arrangements are the only permitted surrogacy arrangement in the UK; commercial surrogacy is illegal.  Surrogacy agreements, even those drawn up, are not legally binding but may help set out the framework for the future.

Mike wonders where they should start to make enquiries.

A specialist fertility clinic will be able to point them in the right direction; at the same time, consideration must be given to obtaining specialist legal advice.

Will it be costly, asks Mike, as finances are stretched?

In the UK, the surrogate mother is permitted to receive her reasonable expenses and this must be clear from the outset.  The legal costs must also be factored into this, and advice at an early stage is paramount.

Following detailed enquires, Mike and Maria have decided to embark on the surrogacy route using a surrogate in the UK; they obtained specialist legal advice and all the procedures were followed.  On birth, however, the surrogate is refusing to hand over the baby to the intended parents, and Mike and Maria are now distressed with this.

I would expect Mike and Maria to have made urgent contact with their solicitor over the sudden change of plans by their surrogate, and I would expect the Parental Order to be lodged without delay, with a full statement detailing the events.   A Cafcass Officer would then be appointed to explore the issues between the parties and the reasons behind the surrogate’s change of mind.  If the surrogate’s position remains unchanged, then it is likely that the court would list the matter for a Final Hearing to decide on the application made by the intended parents.

Did you know facts:

  1. There are only a small handful of lawyers in the UK practising Fertility and Surrogacy law.
  2. Commercial Surrogacy is illegal in the United Kingdom.
  3. The laws on altruistic surrogacy in the United Kingdom are governed by the Human Fertilisation and Embryology Act 1990.
  4. Data on Surrogacy Arrangements in the United Kingdom is very hard to obtain, with no centralised system or storage of that information.
  5. The number of Parental Orders is increasing in the family courts and Cafcass Officers are now receiving tailored training to deal with these applications.
  6. The precise figures on arrangements abroad are unknown, but past and present cases indicate that intended parents from the UK are travelling overseas for surrogacy.
  7. The surrogate is the only legal parent in the surrogacy arrangement until a Parental Order is made.
  8. Prior to 1985 there was no Act to cover the area of Surrogacy.
  9. Around 1,750 babies in the UK are born each year using donated sperm, eggs or embryos.

For more information, or a preliminary, confidential discussion contact our Fertility expert Anne-Marie Hamer.