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October 22, 2014updated 11 Jan 2016 2:10pm

Surrogacy can bring the blessing of a child and the curse of legal tangles

By Spear's

Recent press reports concerning parents allegedly rejecting surrogate children on birth due to disability have brought renewed public attention to the law in this area. Advances in the field of artificial insemination and the transplantation of embryos have forced society to question how one goes about identifying a child’s parents in circumstances where several people may have been directly involved in their creation, including those with no genetic link.

The position in respect of the mother is straightforward as the woman who gives birth to the child is always treated as the legal mother and has the right to keep the child, even if they are not genetically related (for instance, the egg of the intended mother or a donor egg has been transferred to the surrogate).

The position in respect of the father is not as straightforward. If the surrogate mother is married and is impregnated by artificial insemination or the implantation of an embryo, her spouse will be regarded as the child’s father, unless he can show that he did not provide his consent to the insemination or implantation.

If the surrogate mother is impregnated by any other means, the presumption is that her husband is the genetic father, although this can be rebutted by way of DNA evidence from the commissioning father.

As can be seen, commissioning couples can be vulnerable under English law because motherhood is established with reference to the person that bears the child and there are legal presumptions as regards the father where the surrogate is married. This is irrespective of whether the commissioning parents are in fact the genetic parents. How do they therefore establish their parental rights over the child?

This is done via an application for a parental order through the courts. Importantly, the surrogate mother and the legal father must consent to such an order and it must be made between six weeks and six months of the birth (the former to allow the surrogate time to consider matters and the latter to give finality).

In order to obtain such an order, at least one of the commissioning couple must be genetically related to the child, no money must have been paid other than reasonable expenses (unless authorised by the court), the child must be living with the commissioning couple and they must be domiciled in the UK, Channel Islands or Isle of Man. If these criteria are fulfilled, the commissioning parents will be treated in law as the legal parents of the child.

Under English law, therefore, the commissioning parents are required to place a great deal of trust in the surrogate mother, as it is entirely possible that on the birth of the child she will refuse to handover care. While many commissioning parents enter surrogacy agreements with the surrogate mother, such agreements are not enforceable as contracts under English law.

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In all disputes concerning a child, the English courts’ prime consideration must be the welfare of the child. In the event there is a dispute between the parties, the court will decide the matter based on what is best for the child and not simply enforce the terms of an arrangement. There have been cases in which the surrogate has changed her mind after the birth of the child and not handed care over to the commissioning parents and the court has found in subsequent applications by the commissioning parents that it should remain with the surrogate as this is in the child’s best interests.

Linked to their lack of enforceability is the fact that it is illegal under English law to pay a surrogate mother anything other than her reasonable expenses and she cannot engage in surrogacy as a commercial activity.

The recently reported cases have concerned commissioning parents not taking the child (or one of the children) despite agreements being in place. This is a relatively rare occurrence, with most disputes relating to the commissioning parents wishing to uphold the terms of an arrangement. In such a scenario, the surrogate mother is vulnerable because she is the legal mother and will remain so until such time as there is a parental order stating otherwise, which of course the commissioning parents are highly unlikely to request.

As can be seen, this is a complicated area of law. This article only considers the position in the UK. Because of the restrictions in place in the UK, many commissioning couples look to foreign jurisdictions in the search for a surrogate mother, which can make the process even more complicated.

For instance, as well as identifying parentage, the immigration status of the new child has to be considered in circumstances where its birth mother is likely to be a non-British citizen. Expert advice should always be sought before embarking on a surrogacy as the consequences of making a mistake in the process can be devastating for all involved.

Thomas Duggins is a senior associate in the Charles Russell family team

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