Posted by Helen Trott on 27th January 2017

In the news recently it was announced that the latest addition to an aristocratic English family had been born by way of a foreign surrogacy in USA and it struck me why the need to go abroad – surely this country is at the fore front of this type of scientific approach.

I went back and reminded myself of the surrogacy laws in this country and it became clear to me that not much has moved on since the original surrogacy laws in Human Fertilisation and Embryology Act 2008 for instance it is still the case that only couples can enter into a surrogacy arrangement and more importantly in this country commercial surrogacy is still illegal.

Surrogacy is the practice whereby one woman carries a child with the intention that the child should be handed over at birth (Warnock report)

There are two types of surrogacySurrogacy and the law

Partial – this is where the surrogate mother is the genetic mother but the genetic father will be the partner or husband of the proposed mother.

Total – this is where the surrogate mother simply carries the already fertilised egg or is impregnated with a donor egg which is then fertilised

In this country, the surrogate mother is treated as the biological mother and therefore if she changes her mind the commissioning couple have to go to court – but how? After all she is the mother and deemed to be the legal parent in law. If the commissioning father is the biological father, then seeking DNA and then a legal declaration that you are the father is an option – opening up the ability to challenge the mothers care is an option but how messy is this and it can take time- what damage can this do emotionally to all involved including the child.

You may ask that if there is an agreement between the parties surely the surrogate mother would be bound by this? The answer is no she isn’t because this country does not recognise this as an enforceable agreement in law. In other jurisdictions this is not the case. In some countries, you can enter into a commercial agreement and therefore there is a legally binding agreement. This may not appear to some as ‘tasteful’ when a child is involved however how ‘tasteful’ can it be said to be to get involved in a messy long drawn out court battle.

Good news however is on the horizon. The Department of Health is looking to prepare a Guidance on surrogacy and the Law Commission is looking at making new recommendations – no doubt needed in the light of the green light for three parent IVF.

Last year also a case before a High Court Judge made the point that limiting surrogacy to those in a couple was not compatible with the Human Rights Act and therefore the 2008 Act needs to be amended to reflect that an individual can apply. Its taking time but perhaps the UK is beginning to embrace change.

The message is that surrogacy is still a minefield with recent cases in the High court over failure for clinics to get the right consents/disputes between the surrogate and the commissioning parents. If thinking of entering into such an agreement it is worth getting clear legal advice on the pitfalls and options

You never know it could save you time, money and emotional distress in the long run.

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