In this article, being our last in our series on surrogacy, we round up with a summary of issues to be alive to, when considering surrogacy as the correct option for parenthood.
Many couples in the UK now wish to follow the same route as those celebrities, such as Sir Elton John and David Furnish to expand their family through a surrogate, but find themselves more limited by the law in the UK, as compared to the law in the USA.
In the USA, depending upon which State the arrangement takes place in, the intended parents are also the legal parents in accordance to US law. As such, a commercial contract for surrogacy, signed by the prospective parents and the surrogate, is binding and enforceable, allowing greater payments to be made to a surrogate and considerably reducing any risk of the surrogate mother being entitled to keep the child if she changes her mind.
In the UK, although surrogacy arrangements are permitted by law, it is illegal for a woman to make a profit from offering a surrogacy service. Any such commercial contracts are not legally binding or enforceable and any person, who charges for negotiating a surrogacy arrangement, or advertising such arrangement, will commit a criminal offence under the Surrogacy Arrangements Act 1985. For those who are considering surrogacy, it is therefore imperative to be aware of the law before such time as you engage in the process.
As well as limiting any payment to ‘reasonable expenses only’ the UK law states that the surrogate woman who gives birth, whether she is genetically related to the child or not, is regarded as the legal mother of the child, with the absolute right to change her mind following the birth (s33 Human Fertilisation and Embryology Act 2008). It is only the subsequent granting of a parental order transferring the legal parentage to the married/unmarried couple which makes the process complete.
It is therefore clearly evident that the UK law makes no distinction between traditional surrogacy, where another woman carries a baby for an infertile couple using her own egg fertilised with the intended father’s sperm or when a woman carries the intended parents’ genetic child, their embryo. There is one rule for both.
In accordance with the above, the UK law currently appears to support the intention that genetic connection is not the strongest factor, but instead the well-being of the child is given more importance. Indeed, the Human Fertilisation and Embryology (which deal with Parental Orders) Regulations 2010 apply s1 of the Adoption and Children Act 2002 to all court applications for parental orders. This means that the child’s welfare throughout his/her life is now the courts’ paramount consideration when deciding whether or not to make a parental order.
To expand on the above and to highlight the inconsistencies in the English Legal system,in a recent case Re L (A Minor) (Commercial Surrogacy  EWHC 3146 (Fam) Mr Justice Hedley allowed an unnamed British couple to keep their child, even though they had flouted the law by making excessive payments to a surrogate living in Illinois, US, where there is no upper limit on the amount paid to a surrogate. Although this did not change the UK law, Mr Justice Hedley stated that the welfare of the child was the key consideration in such cases and future cases would be rejected only in the ‘clearest case of abuse of public policy’. In January 2011,however, in the case of CW v NT and another  EWHC 33, Mr Justice Baker ruled in favour of an unnamed surrogate mother, saying that as the biological mother of the child, she was better able to meet the child’s needs than the married couple who allegedly had a violent relationship.
Such restrictions in the UK law have now created a global international market for those who live within the UK who seek a surrogate child.
Unlike international adoption, which is strictly regulated in the UK and abroad, international surrogacy is not regulated in any way whatsoever at international level and this is why many UK couples are searching abroad to find expand their families.
Clearly with significant changes in social trends, there is a need in the current society to acknowledge and support those couples who are considering having a child via a surrogate. Without a significant change in UK law and whilst these UK couples continue to feel unsupported by UK law and unrepresented in society, they will continue to seek surrogates abroad.
Here at Pinder Reaux & Associates, we rally the need for change to enable these couples to be encompassed in a new legislative framework to ensure they are fairly acknowledged and supported within our society.