Tom Daley, who announced in March that he and partner Dustin Lance Black are expecting a baby born via a surrogate later this year, described the process as a ‘minefield’.
The Law Commission is currently conducting a three-year review into surrogacy (with the Scottish Law Commission) and has already identified areas of concern around parental orders, international surrogacy and regulation.
Jeetesh Patel, a family lawyer at London solicitors Hodge Jones & Allen and specialist in international surrogacy cases, explains what couples considering surrogacy should know before they even start the process.
“First and foremost, commercial surrogacy in England is illegal. That means entering into an agreement to pay a woman more than just reasonable expenses to have a surrogate baby is still against the law here,” Jeetesh explains.
“Confusion arises because so-called commercial surrogacy arrangements are legal in countries such as the Ukraine and certain US states, including California and Florida – meaning many British couples go abroad to find a surrogate. Commercial arrangements can cost couples around £70,000 in the US, nearer £25,000 in Ukraine, currently one of the most popular destinations for British couples.”
Under English law, no money can exchange hands beyond reasonable medical expenses, such as scans and trips to the hospital, rent, loss of earnings and expenses for the child – usually around £20,000 in total.
“But,” says Jeetesh, “British couples, even if they do have a surrogate baby abroad, still have to comply with English law when they want to bring the baby home, which can be when things get complicated.”
Most importantly, under English law, a surrogate mother, regardless of having no genetic connection to the baby, is considered the child’s mother and, if she is married, her husband, equally without any genetic link, is considered the child’s father.
This means one of the first things the courts require is a DNA test to prove that one of the so-called ‘commissioning parents’ has a genetic connection to the child, i.e. has provided the egg or the sperm.
The courts will only consider in evidence DNA tests carried out by companies recognised by the HMCTS (Courts and Tribunal Service). A vital part of any surrogacy agreement therefore is that the mother will allow the baby to be handed over to the commissioning parents so that they can perform the DNA test to begin the process of taking over legal status as parents.
“If you are abroad, generally you contact a recognised test centre which sends a DNA test kit to the local hospital which performs the test and then sends the swab from the baby and the genetic parent back to the UK. Only once that DNA test is affirmed can you apply for a British passport or a Certificate of Naturalisation (depending of the circumstances) for the child which then allows you to bring the child home,” Jeetesh says.
Back in the UK, once a child is between six-weeks and six-months old, the commissioning parents apply for a parental order to take responsibility for the child and extinguish the rights of the surrogate parents and her husband if she was married. If that child was born abroad, this hearing, generally in two parts, takes place in the High Court in London, not least since few judges are experienced enough to hear the cases. If the child is born in the UK, the family courts apply.
“The first stage in the parental order application generally involves directions,” Jeetesh explains, “ensuring the new parents understand what documents they must provide and what criteria they must meet. There will also be a representative from Cafcass, known as the parental order reporter, whose role is to report to the court on the welfare of the child and if a parental order is in the child’s best interest.
“At the second hearing, the judge, subject to any questions, should grant the parental order.”
Where things go wrong – and it is rare – a surrogate may change her mind and refuse to give up the child to the commissioning parents. At this point, she is still legally the mother and the courts must then decide what is in the best interests of the child. Unfortunately, Jeetesh says, the court will often sit on the fence and grant shared living arrangements, not at all the outcome commissioning parents hoped for, he says.
Within such a legal quagmire, Jeetesh offers six pieces of vital advice for couples considering commercial surrogacy abroad:
- Deal with a surrogacy agency rather than directly with a surrogate to keep things legal and as clear as possible. The agency is responsible for providing the legal advice to the surrogate and preparing the commercial agreement and dealing with any payments due to her under the agreement.
- Keep lines of communication open with the surrogate mother (via the agency), particularly if she lives abroad. You cannot apply for a parental order until the baby is six weeks old (and before six months) so she must sign a consent form to begin the process. If English is not her first language, you must prove that a translation of the consent was provided and that she received legal advice that she understood.
- Be transparent about any payments made to the surrogate. These will be stipulated in advance in a commercial agreement abroad but can be much less clear in a non-commercial agreement.
- It sounds obvious but do take legal advice before you even start investigating foreign surrogacy. As Tom Daly discovered, it is always more complicated than you can imagine.
- Undertake research very carefully. Surrogacy Agencies abroad will often downplay the difficulties of bringing a child home, Research is also needed around the immigration requirements of the country in which the child was born. Jeetesh has recently dealt with a commissioning mother who overstayed in the Ukraine and had to return home without the children.
- Be clear in your own minds (as far as possible) what you are taking on: the financial and emotional burden of spending months abroad – the impact on your job and on relationships, not least with the inevitable stress involved.