The Law on Surrogacy is interesting and complex indeed. Over the years there has been an increase in this area and there have been more reported cases. In England and Wales there are no Surrogacy Contracts. The surrogate mother can change her mind at any point and decide to keep the child/ren even if they are not related to her.
There are two types of Surrogacy namely a full Surrogacy or a Partial Surrogacy. A full surrogacy involves either the eggs or sperm of the intended parents; or a donated egg fertilised with sperm from the intended father; or an embryo created using donor eggs and sperm.
A partial surrogacy is where the sperm is from the intended father and the egg is of the surrogate mother.
In law the surrogate will be the Legal Parent. If the surrogate is unmarried and not in a civil partnership and she does not nominate anyone else as the legal second parent then the biological father will be the second parent.
If the surrogate is married or in a civil partnership the spouse or civil partner will be the second parent.
Once the child is born the consent of the legal parents is required for the biological parents [if full surrogacy] or if partial surrogacy for the intended parents to apply for a Parental Order.
There is a recent case of Re A and B (Surrogacy: Consent) whereby the parties reached an agreement for full surrogacy. The surrogate mother carried twins using the embryos of the intended parents. During the pregnancy the surrogate had suffered some health issues and she felt the
intended parents were unsympathetic to her. After the children were born the surrogate and her husband, the legal parents, handed over the twins to the intended parents and wanted no further contact.
The intended parents issued an application for Parental Orders however the surrogate and her husband refused to consent. The Applicants sought an adjournment to their application with the hope that the Respondents will in due course give their consent. The matter has been adjourned generally with a liberty to restore the proceedings.
This case raises some very interesting points indeed in relation to this area of law. At the moment the child remains with the Applicants under a Child Arrangements Order. The question of adoption was considered however the Judge felt that an Adoption Order would not be the correct order because an adoption order treats a child under an adoption order as if it was the adoptive parents own child.
However in this case the children are the biological children of the Applicants and therefore if an adoption order were to be made the Applicants would be the adoptive parents of their own biological children. Furthermore although the children under this order would remain with their biological parents, as the children grow older they will know that they are subject to an adoption order.
Furthermore, adoption orders are made in favour of someone who is not the biological parent/s and therefore in my view this would not actually reflect the real situation.
It would perhaps be a somewhat different position had the Surrogate mother changed her mind during or after the pregnancy wanting to keep the children however in this case she does not want the children but is withholding her consent to the parental orders being made.
As I have already said this is a complex area of law and those entering into surrogacy arrangements always face a risk that the surrogate mother can change her consent at any point. This of course is something that anyone wanting to enter into such an arrangement must consider very carefully. Should there be a change in the law in relation to this at least where the child is not related to the surrogate at all? Unfortunately it seems there is no straight forward solution to this issue.
In the Case of Re A and B (Surrogacy: Consent) an interesting question it poses is that the surrogate mother does not want the children however is refusing her consent due to the applicants being unsympathetic to her during the pregnancy. One therefore must ask in those circumstances should there be a change in the law to perhaps allow the Court in these type of situations to make a Parental Order where the consent is not being withheld due to the surrogate wanting to keep the children.
The current state of the law it seems leaves the children in a somewhat limbo as their legal parents remain the Respondents. It remains to be seen whether the Respondents’ will in due course change their position as after all the most important thing is to ensure the children have the security growing up and knowing that their biological and legal parents are the Applicants. It remains to be seen how the law in this area will develop. I would say indeed the law in this areas is still developing and has a long way to go.
In my opinion this area of the law is evolving and it is my view that over time we may be seeing an increase in these matters. But the main issue anyone wanting to use this arrangement must consider very carefully is how they would cope should the surrogate mother change her mind. Furthermore the impact on the child/ren as they become older and discover that they are not the biological children of the surrogate mother where it is full surrogacy arrangement. One must therefore ask should the Courts have the power to make a Parental Order where that may be in the child/ren’s best interests. In my opinion this is a very interesting and challenging area of family law.