Earlier this week, Kim Kardashian and Kanye West welcomed the arrival of a baby girl via surrogate. It is understood that the celebrity couple opted for the surrogacy route for their third child after Kim’s two high risk pregnancies with daughter North aged 4 years old and 1 year old son Saint.
Currently, surrogacy arrangements in Northern Ireland are relatively rare, however with couples increasingly opting to have children later in life, the options of both surrogacy and IVF are likely to become more commonplace within our society.
Here is a brief look at the legal implications of having a child via surrogacy…
What is Surrogacy?
Surrogacy is a method of assisted reproduction which provides the opportunity for a couple to have a child together in circumstances where the woman is unable to carry a child herself. The couple (known as ‘the intended parents’) work with a woman who carries a child for them to term – known as a gestational surrogate.
There are two types of surrogacy:-
- Where the surrogate mother provides the egg which is fertilised with the intended father’s sperm.
- Full surrogacy where the egg and sperm are provided by the intended parents and the surrogate mother gestates the embryo.
Is Surrogacy legal?
Yes, surrogacy arrangements were legalised in the UK by the Surrogacy Arrangements Act 1985. This sets out the circumstances in which surrogacy is legal. An arrangement for surrogacy can be legally formalised in advance of the pregnancy. A Surrogacy Agreement can be entered into with the surrogate mother agreeing to bear the child for the couple and surrender the child to them following birth.
Who is the legal parent of a child born via surrogacy?
When a child is born via surrogate, the legal parent of the child is the surrogate mother, regardless of whether the intended mother provided her egg for the purposes of surrogacy. If the surrogate is married, her husband will be considered as the father of the child. This position will not change until altered by a Court.
For the intended parents to become the legal parents of the child and for the transfer of Parental Responsibility to them, an application must be made to the Court for a Parental Order. The Surrogacy Arrangements Act 1985 makes provision for the intended parents to apply to the Courts for a Parental Order after the birth of child.
When such an Order is made, it terminates the rights of the surrogate mother and transfers Parental Responsibility to the intended parents. A Parental Order does not expire and the birth of the child is re-registered in the names of the parents. A Parental Order can only be made if one or both parents are genetically related to the child. If neither of the intended parents are related to the child, then the intended parents must proceed by way of Adoption.
Are there legal risks to surrogacy?
A Surrogacy Arrangement is not without risks, such as the surrogate mother changing her mind and refusing to hand over the child following birth. No one entering into these arrangements does so lightly and it is important that all steps are taken to try to secure and protect the Surrogacy Agreement made between the adults involved.
What legal steps should I take before proceedings with Surrogacy?
Once a surrogate mother is identified, it is important for the parents to enter into a legal agreement with her recording the intentions of the parties. The agreement itself is not necessarily enforceable by the Court, but is an indication of the parties’ intentions which will be taken into account by the Court should a dispute arise.
The surrogate mother cannot be paid for entering the arrangement but she can receive reasonable expenses from the parents for agreeing to carry the child. Later in the pregnancy, it is good practice for all parties can swear legal statements known as affidavits explaining the circumstances and confirming that they have entered into the arrangements willingly with knowledge of what is involved and agreed.
The affidavits can also set out the parties’ intentions as to when the child will be handed over after birth and that the father and surrogate mother will register the birth together with the father’s name on the birth certificate.
Within 6 months following birth, the parents should make an application to the Court for a Parental Order. Certain circumstances must be satisfied for the Parental Order to be made:
- The couple must be married, civil partners, or in an enduring family relationship.
- The couple must both be over 18 years old.
- The couple must be domiciled in the UK.
- The Court must be satisfied that no money or other benefit, other than reasonable expenses, has been received by the surrogate.
- The surrogate mother must freely and unconditionally consent to the making of the Order.
What if the Surrogate mother changes her mind?
If the surrogate mother refuses to hand the child over or give her consent to a Parental Order being made, or if there are concerns about her capacity to consent, the Court will examine the reasons in more detail.
Ultimately, the welfare of the child is the Court’s paramount consideration in Parental Order applications and as such, it must be shown that it is in the child’s best interest for the Parental Order to be made.