We asked Lester Aldridge LLP to explain whose side surrogacy law is on.
Many people will have been gripped by recent developments in Coronation Street – a domestic surrogacy arrangement between Gary, Izzy, and Tina, who is acting as their surrogate.
Izzy’s disability affects her ability to carry a child. Having already suffered a miscarriage due to the strain the pregnancy put her body under and after seeking medical advice, Izzy decided to look into surrogacy arrangements.
Tina offered to assist Gary and Izzy by becoming their surrogate. At the time, Tina and her boyfriend Tommy were in serious financial difficulties and Izzy’s father offered to pay Tina £15,000 for acting as a surrogate.
Gary and Izzy are both the biological parents of the child and insemination took place at a licenced IVF clinic. Matters proceeded relatively smoothly in the early part of the pregnancy, but Tina went into premature labour at seven months and gave birth to a little boy. Tina now wants to keep the baby and not hand him over to Izzy and Gary as agreed. But can she do this under surrogacy law?
Under the law of England and Wales, the woman who gives birth to the child is the legal mother, regardless of whether she has a biological link to the child or not. Therefore, currently, Tina is the legal mother of the child, and will need to register the birth, showing herself as the legal mother.
Izzy has no legal rights over the child. As Tina is unmarried, it is quite likely that Gary is the legal father, depending on which documents and consents were signed at the clinic. No doubt all will be revealed shortly.
Usually, the intended parents would be encouraged to apply for a Parental Order to extinguish Tina’s rights in relation to the child and have parental status conferred upon them. However, as Izzy and Gary are not currently a couple, they do not satisfy all of the necessary criteria to apply for a Parental Order. They also no longer have the surrogate’s consent for a Parental Order and this is fatal to their application.
An alternative route would be to apply for an adoption order in relation to the child. This would also extinguish Tina’s rights in relation to the child and confer parental status upon them.
However, they can only make an application for an adoption order once the child has lived with them for a certain period of time (six months if Gary is the father, or three years otherwise), but if Tina will not hand the child over in the first place, they will be unable to fulfil this condition.
The Courts would then need to become involved to try and resolve the situation. Although the Courts are sympathetic to intended parents of surrogacy arrangements, surrogacy agreements are not legally binding in the UK and are therefore unenforceable, even if the surrogacy expenses have already been paid.
The court has a wide discretion to act in the best interests of the child and there is case law which supports both Tina’s and Izzy and Gary’s positions.
What will happen in this case long term is too difficult to predict, but Tina is certainly the legal mother of this child as things currently stand. She therefore has parental responsibility and can make all necessary decisions regarding his upbringing and welfare.
Another potential pitfall that the parties may face is that Tina received £15,000 for the surrogacy arrangement. Brokering a commercial surrogacy in the UK is illegal and a surrogate can only be compensated for her reasonable surrogacy expenses. This test is subjective and the term ‘reasonable’ is difficult to define.
The fact that Tina received £15,000 from Izzy’s father, together with the use of a flat during her pregnancy and a job working at Izzy’s father’s company, will all need to be taken into account. There is a risk that criminal charges could be faced by Tina, Izzy, Gary and Izzy’s father.
Despite the above, it must be noted that there are many successful domestic surrogacy cases which take place in the UK each year. The storyline in Coronation Street highlights the potential for these agreements to break down and addresses potential legal pitfalls.
Parties looking into the use of a surrogate, whether in the UK or abroad, should always seek specialist legal advice before entering into any agreements.
The Lester Aldridge family team deal with these and other issues on a regular basis and are frequently instructed by clients with disputes relating to the arrangements for their children.
If you would like to discuss any aspect of divorce, separation or wish to protect your assets prior to getting married, contact the family team on 01202 786161 or email firstname.lastname@example.org.