Day: 4 February 2013
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Are You Considering Surrogacy?
Over the course of the next 12 weeks, Pinder Reaux & Associates Ltd, a specialist Family Law firm will bring to you a series of six interesting and eye opening articles about surrogacy.
The first article, will present the basics of surrogacy: what it is and how it works. In later weeks, more in depth issues will be dealt with in detail allowing you to decide whether surrogacy is the right option for you.
What is Surrogacy?
Surrogacy is when another woman carries and gives birth to a child for you. Surrogacy can be an emotionally intense and legally complex arrangement; however it is growing in popularity among parents as a way of having children and possibly, may be the right option for you and your partner.
Why consider surrogacy?
You and your partner may choose surrogacy if you are unable to carry your own pregnancy. You may also be considering surrogacy because of recurrent miscarriages; a health condition which could mean that pregnancy and/or birth could be dangerous; your (or your partner’s) womb is abnormal (whether since birth or after a hysterectomy); fertility treatments (such as in vitro fertilisation- IVF) have failed, You may be in a same-sex relationship and therefore cannot have your own children or it simply may be your method for having children.
How does surrogacy work?
There are two different types of surrogacy:-
1. “Straight surrogacy”
A surrogate mother will conceive after being artificially inseminated with the intended father’s sperm. This woman will then carry the baby and surrender all of her legal rights to the baby, to the biological father and his partner when the baby is born. In this instance, the father’s partner (the new mum), can then apply to legally adopt the baby.
2. “Host surrogacy”
A surrogate mother carries a donated embryo to term. The embryo is conceived through IVF or a similar method. This means the baby can be the biological child of you and your partner, and the surrogate merely carries your baby for you until birth.
Is surrogacy legal in the UK?
Yes, as long as no fee, apart from expenses, is paid to the surrogate. However, it is illegal to advertise for a surrogate or for a surrogate to advertise, and it is against the law for a clinic to find a surrogate for you.
What are the legal issues surrounding surrogacy?
Surrogacy law in the UK is complex and there are many legal issues to consider. This is the case whatever your personal situation (single, married, cohabiting or in a same-sex relationship or civil partnership) and you should be clear on your rights from the outset of the procedure.
Surrogacy arrangements are not legally enforceable and criminal sanctions restrict advertising and prohibit commercial surrogacy organisations in the UK. However many couples enter into surrogacy contracts with the surrogate in order to ensure each party is aware of what is expected of them and to limit the risk that something may go wrong. Although these agreements are not legally binding they are being considered as persuasive authority in the family courts and therefore it is better to have one in place, rather than nothing.
The surrogate mother will be the legal mother of the child unless or until parenthood is transferred to the intended mother through a parental order or adoption after the birth of the child. This is because, in law, the woman who gives birth is always treated as the mother. If the intended parents wish to become the legal parents of the child, they may either apply to adopt the child, or apply for a parental order.
If you do not apply for either a parental order or adoption, this will leave you (as the new parents) without the right to consent to medical treatment or immunisations, register the birth of your baby or apply for a passport for your child. Essentially, the effect of the parental order and/or adoption is to transfer the rights and obligations of parentage to the intended parents, providing certain conditions are met.
The application for a parental order must be made to the Court within six months of the birth of the child. For many new parents, the time following the birth of your baby will be busy and stressful and before you realise, your baby will be reaching its first birthday. It is therefore important to protect and activate your legal rights to your child prior to the six month period elapsing. Similarly, you should also act quickly if an application for adoption is required; to limit any risk your surrogate could change her mind.
Do you apply for a Parental Order or Adoption of your child?
To register your legal rights to your child, you will either apply for a Parental Order or Adoption Order. The application you make will depend on your family’s situation.
To obtain a parental order, either you or your partner must be genetically related to your baby i.e. be the egg or sperm provider. Couples must be husband and wife, civil partners or two persons who are living as partners.
If you and your partner cannot apply for a parental order because neither of you are genetically related to your baby (donor egg and donor sperm or donor embryos were used), then adoption of your baby is the only option available to you.
If adoption order is required, then a registered adoption agency must be involved in the surrogacy process. This is why it is important to get legal advice before you decide to embark on surrogacy.
Have you identified the right surrogate?
Every couple wants a healthy child and therefore identifying the right surrogate mother is an important decision for many couples.
Many will want to know that the surrogate is in good health and does not smoke and/or drink and agrees not to do so when carrying their baby.
Others will enter into a strict arrangement as to what the surrogate can and cannot do during pregnancy in order to limit any possible health risk to their unborn child. Couples will also usually pay the surrogate’s expenses along with additional legal and agency fees if a contract is involved. Expenses can include travel, maternity clothes and loss of earnings.
What happens if I do not enter into a surrogacy agreement?
If you proceed without a surrogacy agreement, known as an informal arrangement, you as the donor or the intended parent could be in a vulnerable position. The likely scenario that can arise giving justification to a formal process can include: the surrogate deciding to keep the baby herself; refuse to give you contact; playing an active role in the child’s upbringing even though she agreed not to etc.
A formal arrangement sets out all the agreed terms before anything has been done. Although this is not binding or legally enforceable, it will clearly set out your intentions and the family courts are showing some sympathy to these arrangements.
You should consult an experienced Family Specialist Lawyer on the matter of drafting an agreement embodying your intended terms for the carrying of your baby how best your child’s future health can be protected.
Having a child through surrogacy will be one of the most important decisions you will make in your life-time. It is therefore fundamental to you and your child’s future that you consider the matter very carefully before proceeding.
You should be confident that any and all decisions you are making in respect of your future child are in place and every possible scenario has been considered. Here at Pinder Reaux & Associates we have a specialist team of family lawyers that can answer any queries you may have in respect of the procedure and legal position. We can also draft the Surrogacy Agreement in accordance to your tailored needs.
If you are considering using a surrogate or would like to discuss the issue of surrogacy in further detail, please contact us and we will be happy to discuss the matter with you.
Make sure you do not miss our next article in a fortnight’s time in which we explain why a surrogacy contract is so important.
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Opinion: Same Sex Marriage; No Brainer Or Political Football
The Marriage (Same Sex Couples) Bill is back before the House of Commons on 5th February.
So what does the Bill do? Clause 1(1) declares simply that the ‘marriage of same sex couples is lawful’. So far, so good. Clause 9 provides that a civil partnership can be converted into a marriage. So far, rather better. The problems, some might say, start at this point. In somewhat convoluted language, clause 1(3) says that nothing in the canon law of the Church of England providing that marriage can only be between one man and one woman shall be contrary to any other law (i.e. the Church of England’s current ban on same-sex marriages will remain lawful). The Church in Wales is treated rather differently. Clause 8 provides that the law will be changed if and when its Governing Body decides to allow same-sex marriages in the future. No such provision is included for the Church of England. Whilst I am not a canon lawyer, I am told that were the Church of England to amend canon law to allow for the celebration of same-sex marriages, the law (i.e. the real law) would be amended to allow for this (with or without Parliament’s approval). I struggle with the subtleties of this, and suspect the real reason why express provision is not made for the Church of England to ‘opt-in’ later if it wants to is political. The issue of same-sex marriages is now the Church of England’s problem, and given recent debates upon the issue of women bishops and ‘celibate’ gay bishops, I wouldn’t hold your breath (unless you are prepared to do so for another 20 years).
Finally, nothing in the draft Bill obliges any religious celebrant or place of worship (of whatever religious persuasion) to celebrate same-sex marriages unless they wish to do so. This is provided for in clause 2 and gives rise to the ‘opt-in’ provisions in clauses 4 and 5. Although this has caused consternation for some, I am tempted to justify it as a matter of practicality. However, such logic would also allow discrimination in other spheres on the ground of gender or race, which cannot be right. In truth, a balance has been struck between attempting to avoid discrimination against same-sex couples on the one hand and religious freedom and tolerance on the other.
As a lawyer, I can live with the Marriage (Same Sex Couples) Bill, although there is certainly room for improvement. What concerns me – not as a lawyer, but as a gay man – is that the Bill and the most vocal opposition to it are apparently (party) political. I imagine the government will be pleased that I am pleased that draft legislation has been brought forward to remove what some (including me) consider an obvious discrimination against same-sex couples. I don’t buy into the idea that civil partnerships are ‘good enough’. If a Jewish couple or a black couple or a disabled couple were only permitted to enter into a civil partnership and were denied the right to marry, I doubt anyone could justify such overt discrimination on the basis that a civil partnership is a marriage in all but name. I imagine most of those who object to same-sex marriage on religious grounds are appalled to see their objections being overshadowed by regional party chairman threatening to deselect MPs if they don’t vote against the Bill. The real debate is at risk of being lost in internal party politics.
by Philip Marshall QC
More about the author.
Philip specialises in divorce and matrimonial finance cases. Called in 1989, he was made a QC in 2012. He is usually instructed in ‘big money’ cases (with 3 cases in the House of Lords) and has extensive experience of drafting pre-nuptial agreements and advising in civil partnerships disputes.
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