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Surrogacy: BBC Radio 4’s ‘The Archers’ storyline highlights legal issues for parents

Rachel Cooper, barrister, Coram Chambers, discusses current UK surrogacy legislation in relation to modern reproductive practices.



Rachel Cooper, barrister, Coram Chambers

There was much excitement last week as Ambridge welcomed Alexander Macy-Craig (or Xander for short) to the BBC Radio 4's 'The Archers'. Xander was born to parents Adam Macy and Ian Craig via a surrogacy arrangement with their friend Alexandra or 'Lexi'.

Xander was born unexpectedly last Monday calling Ian away from judging the Flower and Produce show. The maelstrom that likely caused in Ambridge paled into insignificance when his name was revealed on Friday night to grandparents Jennifer and Brian Aldridge. The revelation that the baby was to be named after his surrogate mother threw Jennifer into a panic that the name would increase the emotional connection between Lexi and Xander, making Adam and Ian more vulnerable to the surrogacy arrangement breaking down.

The BBC's surrogacy storyline fittingly coincides with the Law Commission's project looking into surrogacy law reaching the consultation stage. The consultation period is open until 11 October 2019 with the full consultation paper available here. A Short Form Survey for consultees with personal experience of surrogacy is also available here.


Surrogacy and intended parents

The main legislation concerning surrogacy is the Surrogacy Act 1985 (SAA 1985) and (in respect of the making of parental orders) the Human Fertilisation and Embryology Act 2008 (HFEA 2008). Since 2008, same-sex couples have been able to apply for a parental order. A parental order is the means by which legal parenthood is switched from the surrogate mother to the intended parents.

Jennifer's concern that Adam and Ian remain vulnerable as intended parents in advance of a parental order being made is not wholly misplaced. While there have not been many reported cases of surrogacy arrangements breaking down in the UK, one of the driving reasons for intended parents seeking surrogate mothers overseas is the guarantee of clear and contractual rights in respect of the child.

Until the consent of the surrogate mother (and her spouse / civil partner) is enshrined in a parental order, the surrogacy agreement with the intended parents is an informal arrangement.  The intended parents have no legal recourse for ordering the transfer of the child to them if the surrogate mother changes her mind. This is the case even where the child is biologically their own because the woman who carries a child is the prima facie legal mother of that child (HFEA 2008, s.33). This is an irrebuttable presumption in law.

In the UK, applying for a parental order can take up to a year post-birth. In advance of a parental order being made, only the surrogate mother (and potentially her spouse / civil partner) hold parental responsibility for the child. This means only the surrogate mother can make decisions if the child becomes ill. This exposes the child to significant risk if, as Xander is, he is living with his intended parents, becomes ill and the surrogate mother is unavailable to make emergency decisions about his care. 

In order for a parental order to be made, a surrogate mother must give free, informed, and unconditional written consent (HFEA 2008, s.54(6)) in the correct format (Form A101A). Surrogacy arrangements are unenforceable as consent must be given within six months of the child's birth (SAA 1985, s. 1A / HFEA 2008, s.54(3)).

The surrogate mother has the first and primary claim to the child and can change her mind up until the parental order is granted. For Adam and Ian there is the additional risk that Lexi could remove Xander to Bulgaria where she is from. Without any legal rights in respect of Xander in advance of a parental order being made, Adam and Ian would struggle to have Xander returned to the UK. 


What's in a name?

Jennifer Aldridge became particularly exercised on Friday night on learning that Xander had been named after his surrogate mother. As Shakespeare's Juliet famously and rhetorically asked from her balcony of Romeo being a Capulet: 'What's in a name?'

C (Children) [2016] EWCA Civ 374 was not a surrogacy case. It was an appeal from a decision made in public law proceedings injuncting a mother from naming her twins "Cyanide" and "Preacher". The case is interesting for the purposes of discussing Adam and Ian's decision to name Xander after his surrogate mother because of what King LJ says in her lead judgment about a child's forename:

"[40] …The forename finally chosen forms a critical part of his or her evolving identity.  The sharing of a forename with a parent or grandparent or bearing a forename which readily identifies a child as belonging to his or her particular religious or cultural background, can be a source of great pride to a child and give him or her an important sense of 'belonging' which will be invaluable throughout his or her life.

[41] If a baby cannot be brought up by his or her parents, often the forename given to him or her by their mother is the only lasting gift they have from her. It may be the first, and only, act of parental responsibility by his or her mother. It is likely, therefore, to be of infinite value to that child as part of his or her identity. […]

[51] …given the fact that in the 21st century a child will predominantly use his or her forenames for most purposes throughout his or her life, that forename is now every bit as important to that child, and his or her identity, as is his or her surname."

In Re D, L and LA (Care: Change of Forename) [2003] 1 FLR 339, Butler-Sloss LJ (as she then was) said that both a forename and a surname reflected a child's "roots" (at 346).

In a surrogacy case, it is the surrogate mother (and possibly her spouse / civil partner) who will be registered initially as the child's parent(s) on the birth certificate. This must be the case as the birth must be registered within 42 days and the surrogate mother is not considered capable of giving consent for a parental order to be made in the first six weeks after the child is born (HFEA 2008, s.54(7)). It is therefore the surrogate mother who will register what the child's surname and forenames are to be. If the surrogate mother gives the child different names from those chosen by the intended parents, the name(s) can be changed once a parental order is made as the child's birth certificate is reissued with the intended parents' names set out as the child's legal parents.

Alexander Macy-Craig by any other name would doubtless be as sweet. Seen in the light of C (Children), Adam and Ian's choice of name is arguably a fitting reflection of Xander's identity as a surrogate child and of the gift provided by Lexi to this modern family.


Conclusion

In many US states, situations of this kind are avoided with legal mechanisms that put intended parents' names on the birth certificate from the get-go, often via a pre-birth order, which transfers responsibility to intended parents before the surrogate gives birth. This provides legal certainty for all parties, particularly the child.

There will doubtless be many further twists and turns in Xander Macy-Craig's life-story before the matter resolves. What the Archers' storyline accurately highlights is how out-of-step current surrogacy legislation is with modern reproductive practices, when a felicitous naming decision is the cause of such consternation because it risks destabilising the surrogate mother's decision to consent to a parental order being made. The current legislation governing UK surrogacy causes the process to be fraught with difficulty for intended parents, surrogate mothers and resultant children. Reform is urgently required in order to provide legal certainty for modern UK families and their children.