Surrogacy rights and responsibilities

What if another woman carrying your child was your only option?

Two women standing opposite each other - surrogacyJo Clarke and Jenny Shepherd have recently questioned whether women can have it all. Jo highlights the difficulties women face when trying to juggle a successful career with having children but, as Jenny points out, some people face difficulties in conceiving children at all.

The recent increase in the number of women receiving fertility treatment is only one form of assistance women are turning to. For some women IVF and other forms of fertility treatment are not enough.

Some couples and individuals are seeking the assistance of a surrogate as a way to fulfil their desire for children. Surrogacy could never be deemed the easy choice. It comes with huge emotional and psychological challenges as well as legal risks, so it is often a last resort for people facing conception difficulties.

UK surrogacy law

Under UK law, the woman who carries the child is the legal mother, regardless of who is the biological mother. If she is married then her husband is the legal father.

Therefore, after the jubilation of becoming “parents” the intended Mum and Dad have to overcome legal hurdles before they can become the legal parents of the child and gain the rights and responsibilities other parents take for granted. This can be a lengthy and expensive process at a time when all these new parents want to do is be parents.

This assumes that the surrogate mother adheres to the agreement made and hands the baby over when born. Unfortunately there is no guarantee that this will happen, and under UK law the surrogate mother is legally the parent of the child.

That being said, there are only two reported cases of surrogates refusing to hand over the child following a domestic surrogacy agreement. Considering that over 900 successful surrogacy agreements have been reported, this figure is reassuring, but still another thing for people entering into surrogacy arrangements to think through.

International surrogacy law

Lots of babies sitting on a carpetInternationally in countries such as India or some states in America the intended parents are awarded parental status before the birth, so as soon as the baby is born parental rights and responsibilities are automatically awarded to them. At no time does the surrogate mother have any parental rights in relation to the child.

This may make international surrogacy seem like an “easier” option. However, under UK law your international surrogate would still be deemed the legal parent of the child and so an application would need to be made to the UK court before the couple become the legal parents in the UK.

Neither international nor domestic surrogacy is without risk and neither could ever be considered easy options for starting a family. But, for some people it may be the only viable option.

The Lester Aldridge family team deal with these and other issues on a regular basis.

lester-aldridge-logoIf you would like to discuss any aspect of divorce, separation, arrangements for your children or wish to protect your assets prior to getting married, contact the family team on 01202 786161 or email jane.porter@la-law.com.

The information contained in this publication is for guidance only. No responsibility can be accepted by Lester Aldridge LLP (LA) or by external contributors for action taken as a result of the information contained in this publication. It is not intended to be an exhaustive statement of the law or a substitute for seeking specific advice. Photocopying or other reproduction without LA’s permission is a breach of copyright. LA is regulated and authorised by the Solicitors Regulation Authority. A list of members is available on request. Registered Office: Russell House, Oxford Road, Bournemouth, Dorset BH8 8EX. Registered in England OC321318. Dated: December 2012

Lester Aldridge LLP

About Lester Aldridge LLP

Lester Aldridge LLP is a nationally recognised law firm with offices in London, Bournemouth and Southampton. The family team are leaders in their field. Jane and Jo are specialist family solicitors with a wealth of experience in all areas of family law from divorce to children, pre-nuptial agreements to the settlement of financial disputes and everything in between. These women are feisty when they need to be. But their approach is designed to reduce conflict in order to ensure the best possible outcome. They recognise that family issues can be extremely emotional and they offer accessibility to specialist advice delivered in a friendly, approachable and understandable way designed to guide you from start to finish. If you would like an informal, no-obligation chat with Jane or Jo please telephone 0844 856 6865.