by Anne-Marie Hutchinson OBE
ANNE-MARIE HUTCHINSON OBE is a partner and family law expert at DAWSON CORNWELL of 15 Red Lion Square, London, WC1R 4QT, tel:+44 7242 2556, fax:+44 7539 4841, firstname.lastname@example.org, website: www.dawscornwell.com
Surrogacy arrangements in England are not illegal (provided that they comply with the law) however surrogacy contracts and agreements are not enforceable. It is for this reason that many couples look to make arrangements in a jurisdiction where there is legal certainty and enforceability.
In England it is illegal for any person to negotiate, arrange or make surrogacy arrangement for a fee. This does not however prevent the commissioning parents and the surrogate themselves from doing so. The law is designed to deter commercial agencies.
The normal principles of private international law apply to children born of a surrogacy arrangement and the test to determine the applicable law is the habitual residence of the child. Where a couple are resident, and intend to reside, in the UK with their child born to an overseas surrogate it will be necessary for them to acquire the status of a parent (and cancel the gestational mother’s rights) under English law. This has always been the case and was the case before the final part of the Human Fertilisation and Embryology Act 2008 (HFEA) came into law on 6th April 2010 in England.
There are only two means by which the surrogate’s rights can be removed; by way of a Parental Order or an Adoption. Unlike many other areas of family law there are no reciprocal arrangements or conventions for the recognition of surrogacy orders made overseas.
A Parental Order (or custody) obtained in another jurisdiction has no standing in England in respect of a child born to a couple who have their home here. Thus whilst clearly the pleadings and orders made in a country such as the USA will have evidential value the orders will not operate to vest parental rights in England.
The HFEA 2008 sets out the provisions by which commissioning parents can acquire the status of legal parents. The Act extends the definition of a couple who are, or can become, parents through assisted reproduction arrangements and specifically includes same sex couples. All of its provisions are now fully in force.
A child can only have two parents and the status of ‘parent’ is not necessarily the same as the status of those who have parental rights.
In England the mother is defined as the person who has carried the child (whether or not it is her biological child) and she will have parental responsibility over the child at the time of birth.
In the event that she is married or in a civil partnership, her husband/civil partner will also acquire legal rights (unless that person did not consent to the surrogacy arrangement).
In England a Parental Order under the HFEA is the “bespoke” form of order for couples who become parents through a surrogacy arrangement (including an overseas surrogacy arrangement) and should be the form of order that parents aspire to. The acquisition of parental rights through adoption or other custody provision should be the default not preferred position.
Parental Orders – the essentials
1. Parental Orders cannot be applied for until the child is at least 6 weeks old and must be applied for before the expiry of 6 months from the time of birth [this is non-extendable].
2. Upon making the Order the court must be satisfied that the mother who carried the child and any other person who is a ‘parent’ have truly and with full understanding agreed unconditionally to the making of the Parental Order.
3. The child’s home must be with the applicants at the time of the application.
4. One or both of the applicants must be domiciled in the UK (note domicile is not the same as nationality or habitual residence).
5. Both applicants must be aged over 18 years.
6. The child must have a genetic link to one of the commissioning parents.
7. The court must be satisfied that no money or other benefit other than expenses reasonably incurred have been given or received by either of the applicants for or in consideration of:-
a. the making of the order
b. the agreement to the Parental Order
c. the handing over of the child or
d. making arrangements with a view to making the order
This is what is called the commerciality test.
However the court is not prohibited from making a Parental Order where it finds that more than reasonable expenses are paid if it is in the best interests of the child to make an Order.
There have been a number of cases where the court in England has made Parental Orders on precisely this basis.
It is not necessary for a commissioning couple to be in a marriage or civil partnership to apply for a Parental Order. Two persons who are living as partners in an enduring family relationship can apply for a Parental Order for their child.
In some countries (such as India) surrogacy arrangements are not illegal but there is no form of process by which the gestational mother’s rights can be extinguished and the commissioning parents acquired. This can lead to a legal hiatus and sometimes insurmountable immigration problems. It is for this reason that more sophisticated and established jurisdictions are the preferred option for many commissioning parents.
The need for commissioning parents to obtain expert advice before entering into the surrogacy process cannot be over emphasized. This was reiterated by the High Court in a recent case where Mr Justice Hedley said “one reason for adjourning these reasons into open court is to emphasise once again the legal difficulties that overseas surrogacy agreements can create. In the experience of the court to date, all overseas jurisdictions can confer parental status on the commissioning couple but that status is not recognised in our domestic law nor (at least where a commercial agreement has been in place) could it be. Those who travel
abroad to make these arrangements really should take advice from those skilled in our
domestic law to be sure as to the problems that will confront them (not the least of
which is immigration) and how they can be addressed. Reliance on advice from
overseas agencies is dangerous as the provisions of our domestic and immigration law
are often not fully understood”.
Re IJ  EWHC 921
Where an overseas surrogacy arrangement is entered into, immigration considerations must be addressed at the earliest possible stage. It is essential that the immigration status of the baby is established before conception.
The status of the child depends to a large extent on the marital status of the surrogate mother. If she is unmarried (or her husband did not consent to the surrogacy), the child may be automatically entitled to British citizenship if the commissioning father is the genetic father and he is British ‘otherwise than by descent’.
Where the surrogate is married (and her husband consented to the surrogacy) the child will not be British and it will be necessary for either an entrance clearance visa to be obtained or for the child to register as a British Citizen. With regards to the visa, it is valid for 12 months and will be made on the basis that a Parental Order is likely to be made in the UK (and, amongst other things, a DNA test must carried out).
Where the commissioning parents are not British citizens, immigration advice will be required and a route advised upon depending on the circumstances.
The making of the Parental Order confers British nationality if the one of the parents who have obtained the order is British.
Children born of a USA surrogacy arrangement will normally be entitled to a USA passport by virtue of the birth in the USA. USA visitors can enter the UK for a period of 6 months without the need for a prior entry clearance visa and the temptation to bring a child into the UK on such a visa can be great. However, the advice of the UK Border Agency is clear that the children should not travel in this way, they should obtain a passport, a visa, or register as British before travelling. To arrive as a visitor has the inherent danger that the child will be refused entry because it is clear that it is not intended that the child will leave at the end of the visit (the more so because the parents themselves intend to remain living in England with their child.) An immigration lawyer contact has let me know that twins from the US were refused entry very recently, though they were given ‘temporary admission’.
Where the Parental Order cannot be obtained
If for any reason a UK Parental Order cannot be obtained i.e because the criteria cannot be met another form of parental rights must be obtained i.e adoption. Only adoption will extinguish the parental rights of the gestational mother and vest all the rights in the commissioning couple. There are however strict regulations (and prohibitions) relating to bringing a child into the UK for the purposes of adoption and prior local authority clearance must be obtained.
If adoption is not available then there are a number of means pursuant to the Children Act 1989 by which the commissioning couple can acquire parental rights but it will not necessarily make them a ‘parent’.