Surrogacy 17 Jun 2009

Naomi Angell of Osbornes explains the finer details of surrogacy

Sarah Jessica Parker is now the proud mother of twins following a surrogacy arrangement and the subject of surrogacy as a way for childless couples to have a family has hit the headlines again. The advantage of surrogacy over adoption is that a couple will be able to have a very young baby who is likely to be biologically related to one or both of them. Surrogacy in this country is within the law, but not as a commercial transaction. It is unlawful for a surrogate mother to advertise her services or for a childless couple to advertise that they are looking for a surrogate to bear a baby for them. However, there are voluntary organisations such as COTS who are able to help.

As commercial surrogacy is unlawful, a surrogate mother is only entitled to be reimbursed for the expenses of having the baby. ‘Expenses’ include medical expenses, maternity clothes and having to stop work for a period of time. Court decisions have set this at roughly £12,000.

The surrogacy could be a full surrogacy where the baby is not the biological child of the surrogate mother and the sperm and egg are either those of the childless couple or of sperm and/or egg donors. Otherwise it will be a partial surrogacy where the baby is conceived with the sperm of the childless father, but the egg of the surrogate mother. Either way it is the surrogate mother who is, in this country, the legal mother of the child.

The couple receiving the baby can obtain a Parental Order in the Courts that makes them the legal parents of the child and is equivalent to an Adoption Order. However, the surrogacy arrangement is not a legally binding contract that can be enforced at law. This means that if the surrogate mother changes her mind about giving up the baby or if, for instance, the baby is born with a disability and the childless couple change their minds about receiving the baby, the courts cannot assist in enforcing the arrangement. There is the possibility of other types of legal proceedings, but these would be extremely complex.

Increasingly, because of the difficulties in finding a surrogate mother in this country, families are looking abroad for a surrogacy arrangement, maybe to India or the USA. Many more legal problems are involved in international surrogacy, where the family plan to bring the baby back into this country.

It will be necessary to take legal advice in a foreign country as to the legality of the surrogacy arrangement in that country, on who would be regarded there as the legal parents and also on the child’s immigration and nationality status. In addition, in this country a couple will have to deal with complex adoption and immigration law issues in order to bring the child into the UK and to be recognised as the baby’s parents here. Not impossible but certainly not a primrose path.

Naomi Angell specialises in children’s law and has particular expertise in international and domestic adoption, children’s cases with an immigration interface, child protection and alternative reproduction cases, such as surrogacy.

She chairs the adoption panel of a national adoption agency and has been closely involved in the parliamentary process of the recent new adoption legislation. She is a Consultant at Osbornes and qualified as a solicitor in 1973.

Contact her by email or call 020 7681 8687

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