International Surrogacy

The highly sensitive and topical issue of international surrogacy has become headline news again following the stark warning of a top High Court Judge. At a recent meeting of international family lawyers in London, Dame Lucy Theis warned that the failure of parents to apply for the appropriate court orders in relation to children born through surrogacy arrangements is causing ‘a ticking legal timebomb’. The number of parents commissioning a child through commercial surrogacy arrangements, usually overseas, is increasing year on year, so the potential risks are becoming of even greater concern.

There are various risks to parents who fail to apply to the Court for a ‘parental order’ to regulate their legal status as parents to the child or children born to a surrogate mother. If the commissioning parents do not have the benefit of a parental order, they have no legal status in the eyes of the English court. The birth mother (and her husband if she is married) are the legal parents, regardless of the terms of the surrogacy arrangement. A parental order extinguishes the surrogate mother’s status as a parent and transfers it to the commissioning parents.
If the appropriate legal application is not made, there can be huge difficulties in relation to immigration and nationality and children could be left ‘stateless’. Equally, there are problems in relation to inheritance and what will happen to the child if the commissioning parents were to separate or otherwise need the assistance of the court in determining the arrangements for the child.

It is estimated that there are over 2,000 babies born to surrogate mothers and commissioned by parents living in the UK. However, only 241 applications were made to the court for parental orders last year (figure from Cafcass). That means a huge number of parent-child relationships are at risk of the sort of difficulties mentioned above. To date, every application for a parental order has been granted, although there are strict requirements which need to be adhered to which is why specialist legal advice needs to be obtained.

This area of law undoubtedly needs to be reformed to reduce the risks to the child of the sort of difficulty mentioned above, particularly give the increasing numbers of babies born through a surrogacy arrangement. The have been repeated calls to modernise both English law and to introduce some form of international instrument to provide minimum standards to protect the children involved. The public health minister, Jane Ellison, has confirmed that she will consider requests to change the law, so it is hoped that with the new government some progress in this regard will be made. However, any reform is likely to be some years in the future. Until that time, it is crucial that those considering having children through a surrogate arrangement do their research and seek advice from an international specialist to assist them in navigating their way through a potential legal minefield.

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