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Surrogacy UK Law - Update


You may have heard in the news last week of Parliament’s decision to approve legislation which could in effect provide for Britain to be the first country to create 3- parent babies.

However your opinion falls on the ethics of such medical advancement, it is clear that there will always be controversy surrounding the many different ways in which families of every size, shape and colour choose to extend their family; some even being considered taboo in nature.

Surrogacy in the UK was one such area of fertilisation that has for many years attracted negative press. I have blogged before on the subject of UK surrogacy laws and the difficulties faced by many families seeking the help of third parties together with the very restricted legal framework associated with registration of parental orders and agreements generally.

However, surrogacy is rapidly becoming the largest developing area of family law in the UK with over 12 reported cases in the past 2 years. The main themes running through each case reported seems to focus primarily on:

Time limits have seen the biggest developments over the past 2 years. I have previously highlighted the importance of applying for parental orders as soon as possible after the birth of the child to reassign parenthood in surrogacy cases. In doing so, the surrogate mother’s parental status is extinguished in order that full parental status and parental responsibility can be granted to the new parents. Prior to recent case law there was a strict six-month time limit from the birth of the child for the intended parents to make their application for a parental order. Often, parents failing to make their application within the strict deadline had devastating consequences and case law at the time sought only to reinforce the non-extendable six-month time limit. The case of RE X [2014] EWHC 3135 (Fam) however has now cemented the view that every case should be fact specific and that the strict six-month deadline can be extended depending on the circumstances surrounding the delay in application. What is now very welcomed from the decision in this case is that it allows those parents that have so innocently missed deadlines to apply for parental orders.

Authorisation for payment has also been a central theme particularly in view of the many surrogacy agreements that have taken place outside the UK. UK laws ensure that surrogacy operates on a not-for-profit basis and therefore any payments made by couples other than those reasonable expenses incurred have to be authorised by the court. Otherwise, couples run the real risk of facing morality charges since surrogacy and large monetary payments continue to be illegal. Case law in this area has provided a stark reminder to intended parents of the need to keep a clear record of monies paid, reasons for payments and detailed notes of communication with the surrogate mother to demonstrate payment proportionality and their overall intention within the surrogacy process.

Domicile, through recent case law, can now be a useful source of jurisdiction for those living abroad where surrogacy is not recognised in that country. The English courts have always been clear that one of the applicants applying for a parental order has to be domiciled in the UK. However, there is no requirement for the parties or the child in fact to be habitually resident in the UK. The only requirements are that the child’s home is with the applicant at the time of the application and that the parents can establish a connection with the UK.

The law surrounding surrogacy will continue to develop as will other areas of fertilisation. Some will continue to provoke ethical questions whilst other will begin to stabilise and affirm unfamiliar territory, particularly for those families seeking alternative family planning routes.

If you need advice regarding the law surrounding Surrogacy or any other Family Law issue please call our Family Team directly on 0113 246 0622.

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