Surrogacy and the Law

The meaning of surrogacy 

Surrogacy includes all situations where a woman agrees to carry and have a baby for another couple, whether for payment or not. The agreement is made before the surrogate mother began to carry the child and it stipulates that the baby is to be handed over at birth.

It is important to emphasise the difference between surrogacy and effectively selling children which is in many respects illegal. Therefore, certain wariness could be seen of the courts when deciding to uphold surrogacy agreements where the agreement is based on a payment. Then the agreement would only be upheld if the amount paid is reasonable with regards to expenses of the pregnancy.

The meaning of surrogacy agreement

Whenever looking at such an agreement, a consideration is to be given to the circumstances in full. Further, in particular where there is a promise or undertaking for a payment to the woman or for her benefit in respect of the carrying of any child in accordance with the agreement, consideration is to be given to the understanding of that promise. Therefore, it is important to be clear that an agreement was entered into freely with full understanding of all parties.

The types of surrogacy

Surrogacy covers in particular situations where the surrogate mother carries a baby conceived by the gametes by the couple, which is also known as total surrogacy. In the course of such process, artificial insemination takes place and then the embryo is implanted in the carrying mother. In those situations it is clear that the surrogate mother and the baby have no genetic connection.

On the other hand, there is partial surrogacy, where the surrogate mother is the genetic mother of the child, which is conceived by artificial insemination using the sperm of the commissioning father.  

The effect of surrogacy in terms of parenthood

It is important to note that in both the above mentioned types of surrogacy, the carrying mother is under the laws of England and Wales the legal mother of the baby. The legal principles establish that the legal mother of a child is the one who gives birth to that child irrespective of any genetic connection.

As a legal mother of the child, she will have parental responsibility and therefore an important influence on any decisions made in respect of the child. However, important consideration for the courts when upholding decisions, regarding the upbringing of the child is the welfare of the child, which is the paramount consideration. 

With regards to the legal father, the circumstances are more complex.

When the surrogate mother is married, there is a presumption that he will be the father of any of her children. If her husband is prepared to state in writing that he did not give permission to the agreement, then the intended father may be named as the father of the child.

If the surrogate mother is not married, then the biological father, who will be treated as legal father of the child, may be registered as the father on the birth certificate. As a result the named father will acquire parental responsibility.

The enforcement of surrogacy agreements

The enforcement of such agreements has been causing some considerable difficulties for a number of years. The correctness of forcing a woman to give up a baby after she has carried it and then changed her mind about giving it up is questionable in legal and moral terms.

As a general rule, therefore, no surrogacy agreement is enforceable by or against any person making it.

After the birth

In certain circumstances a court can make a parental order to the effect that the child of surrogacy is to be treated in law as a child of the marriage. Those are that a child has been carried by a woman as a result of the placing in her an embryo, sperm and eggs or of artificial insemination. And further that for the creation of the embryo, gametes from husband or wife or both were used.

An application should be made by the parents no less than six weeks from the birth and no more than six months. The parents must be at least 18 years of age. Further, at the time of application, the child’s home must be with them and either one or both are domiciled in the UK, the Channel Islands or Isle of Man. The court must be further satisfied that all the parties including the father of the child where he is not the husband, have acted freely and in full understanding. In addition, the court must be satisfied that no money or benefit has been given or received in consideration of any agreement, the order or handing over of the child. 

The other alternative is for the child to be adopted by the commissioning couple. This is available where time-limits have expired or the birth mother withholds her agreement.

Where adoption is not possible, it may be possible for a residence order to be applied for and made in respect of the couple. Nevertheless, a residence order would not extinguish the parental responsibility of the surrogate mother.