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Surrogacy: A Guide to the Current Law (Part 1)

In the first of two articles providing an introduction to surrogacy law, Bianca Jackson, a pupil barrister at Coram Chambers, considers the key statutes and regulations underpinning this growing area of family law practice.


Bianca Jackson, pupil barrister, Coram Chambers












Bianca Jackson, pupil barrister, Coram Chambers

Introduction

As any legal practitioner who has waded into the muddy waters of surrogacy knows, surrogacy law in the United Kingdom has developed in a haphazard fashion. Although a number of governmental committees have considered the law over the past thirty years, it has hardly changed since the last-minute introduction of the Surrogacy Arrangements Act 1985 ("SAA 1985"), and those few amendments that have been made have been devised largely in reaction to antecedent litigation. As a result, surrogacy law is piecemeal, out-dated, and full of contradictions: for example, commercial surrogacy is prohibited, but the courts can authorize payments to the surrogate mother; third party non-profit surrogacy organizations can receive remuneration for some services, but not for others. There is no comprehensive legal approach to surrogacy or even consensus about what such an approach would look like. As such, surrogacy law remains a source of confusion to both practitioners and those who engage in surrogacy practices.

This is the first of two articles. In an effort to clarify the existing law for practitioners and laymen alike, it examines the key statutes and regulations, providing a brief introduction to surrogacy law in the UK. The second article will explore some of the issues and complications that arise in the practice of surrogacy law, including matters relating to international surrogacy arrangements, single parents and alternative families.

Surrogacy Arrangements Act 1985

The Surrogacy Arrangements Act 1985 is the main statutory instrument governing surrogacy in the United Kingdom. It defines the key terms, including "surrogate mother" [s.1(2)] and "surrogacy arrangements" [s.1(3)], and lays down the following key principles, which can be roughly divided into those pertaining to "commissioning" (also known as "intended") parents and those pertaining to professional bodies:

1. The law as it pertains to commissioning parents:

2. The law as it pertains to professional bodies: 

Human Fertilisation and Embryology Act 1990 and Human Fertilisation and Embryology Act 2008

While the SAA 1985 defines the terms of and regulates surrogacy arrangements, the Human Fertilisation and Embryology Act 1990 ("HFEA 1990") and its amending legislation, the Human Fertilisation and Embryology Act 2008 ("HFEA 2008"), address a number of different aspects of reproductive law, from regulating what can and cannot be done with gametes to the functions of the Human Fertilisation and Embryology Authority. For the purposes of surrogacy arrangements, the two acts provide guidance on the legal definitions of parentage post-birth and how parental responsibility is transferred from legal parents to the commissioning parents. An understanding of the prima facie relationship at birth of the child to all parties involved and how those relationships may be altered is integral to managing a surrogacy arrangement, whether pre- or post-birth. 

It is also important to note that the HFEA 2008 extends the right to apply for parental orders – set out in HFEA 1990 – to same-sex and unmarried couples [s.54], and stipulates that that non-profit making surrogacy agencies can charge for some of their services [s.59]. The main principles encapsulated in the two acts are as follows:

1. Legal definitions of parentage 

- If no one chooses otherwise, the commissioning father will be regarded as the legal father of the child so long as he is also the biological father.

- If treatment takes place at a licensed fertility clinic, the surrogate mother can appoint the commissioning mother [HFEA 2008, s.43] or a non-biological father as the second parent [HFEA 2008, s.36].

2. The transfer of parental responsibility and legal parenthood 

Human Fertilisation and Embryology (Parental Orders) Regulations 2010

The Human Fertilisation and Embryology (Parental Orders) Regulations 2010 ("HFER 2010") inserted s.1 of the Adoption and Children Act 2002 ("ACA 2002") into s.54 of the HFEA 2008. As such, the welfare of the child is now the paramount consideration of the court when considering an application for a parental order, as opposed to the "first consideration", as the previous regulations dictated [Schedule 1, Section 1 (consideration applying to the exercise of powers), (i)].

The HFER 2010 also stipulate that the checklist of matters which the court must take into account when determining an application for adoption applies also when deciding parental orders. Those considerations are as follows:

Family Procedure Rules 2010

Part 13 of the Family Procedure Rules 2010
("FPR 2010") provides integral guidance on s.54 of the HFEA 2008. Though it is crucial that any commissioning parents or legal practitioners applying for a parental order have a grasp of all of the procedural rules, some of the most salient ones are outlined below.

1. Applying for a Parental Order

Conclusion

Despite the patchwork of data that exists on surrogacy arrangements in the United Kingdom, it is clear that surrogacy is on the rise. The annual rate of parental orders that were granted to commissioning parents more than doubled between 2007 and 2011*.  Yet engendering a surrogacy arrangement remains a complex process, not least because surrogacy law in the United Kingdom is complex and antiquated. There has been a rallying cry amongst legal practitioners and academics to bring surrogacy law into the 21st century, but thus far, this has not materialized. Until a comprehensive approach to surrogacy law is created, it is critical for lawyers, as well as all parties involved in the surrogacy process, to understand the law as it currently exists. This article has hopefully provided a clear, albeit rudimentary, explanation of the fundamentals of surrogacy law in the United Kingdom. The next article will examine some of the difficulties that arise out of the current provisions and the court's management of these issues in practice.
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* Marilyn Cranshaw, Eric Blyth and Olga van den Akker, 'The changing profile of surrogacy in the UK– Implications for national and international policy and practice' (September 2012) 34.3 Journal of Social Welfare and Family Law 268.

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