Many will agree that society has changed considerably in the last 10 years and in particular, how one would define ‘family’ has changed with families now taking many different forms. Whilst society is able to change and adapt quickly, the law struggles to keep up. A prime example of this is with surrogacy.
The current law dealing with surrogacy was first drafted in 1985 before being amended in 2008. Whether the law still remains fit for purpose 10 years on is something the Law Commission is currently considering as part of a wholescale review of surrogacy law.
One area that is likely to receive close scrutiny is the parents’ rights and responsibilities to a child born through surrogacy. Currently, the person giving birth to the child is the child’s legal mother and unless she freely provides her consent to transfer this status to those intending to be the parents (who must also consent) through the making of a Parental Order, she will remain the child’s legal mother. The mother’s consent can only be given after the child is born and any written agreement requiring the mother to transfer her status as ‘legal parent’ is unenforceable. Some argue this protects the surrogate mother from exploitation and avoids surrogacy from becoming a commercial arrangement; others believe it gives the surrogate mother too much power but also risks the surrogate being left (literally) holding the baby if the intended parents change their mind. This is going to be a challenging balancing exercise for the Law Commission.
Whilst most surrogacy arrangements are successful, there remains the occasional case when it goes wrong. The media has recently reported a case of a gay couple, one in his 30s and one in his 70s, who wanted a child through surrogacy. They met a woman who agreed to be their surrogate and the sperm of the younger man was used to create an embryo. They apparently entered into a surrogacy agreement, which, whilst unenforceable, is often advisable. It sets out everybody’s expectations as it requires all parties to sit down together and discuss any problems they envisage could crop up in the future and address them at a time when all want to achieve the same aim.
Sadly during this pregnancy, the older man died and on the birth of the child, the surrogate mother refused to hand the child over to the younger man as she apparently wanted the child to go to a couple. She had also bonded with the child. It is now reported that the younger man intends to sue the surrogate mother on the basis that she breached the terms of a surrogacy agreement that they had entered into.
Looking in from the outside, the surviving man appears to be in a difficult position. As the law currently stands, the surrogate mother cannot be compelled to transfer her status of legal parent to him. However, even if she did consent, he would still face difficulties as the law states that only people who are a married, in a civil partnership or two people in an enduring family relationship can apply for a parental order. The surviving man unfortunately would no longer fulfil any of these criteria (although this may change in the near future as there is a draft Bill before Parliament to change the law to allow a single person to apply for a Parental Order). Furthermore, as the surrogacy agreement they entered into is unenforceable, it is likely he will struggle to sue the surrogate mother for breaching the agreement.
There are other options which, whilst perhaps not as ideal as a parental order, an individual in his situation could consider. The court has other wide ranging powers such as the ability to decide who the child should live with and the extent to which each party can exercise their parental rights. The surviving man could also consider adopting the child. However, these can be very tricky applications and any person in his situation would be well advised to seek legal advice before setting down such routes.
Thankfully, cases like these are rare and most surrogacies are successful. The key to success often lies in careful planning:
- Carry out your research and consider whether organisations such as Surrogacy UK can help you.
- Get to know your surrogate. Surrogacy works on a high level of trust so it is important that you and your surrogate trust each other explicitly and have the same objectives and expectations.
- If there is disagreement or something does not feel right, consider whether the surrogate is the right match. Whilst time and effort may have been spent getting to the point of meeting a surrogate, it is often better to take stock and reassess the compatibility with the surrogate before she becomes pregnant when it may be too late.
- Seek early legal advice. As the law is quite prescriptive, it is important to get it right from the beginning. If the law is followed, it is a relatively straight forward legal process. If not, it becomes much more difficult to correct procedural errors at a later date.