Couples Considering Surrogacy Urged Not To Ignore Legal Protection

Couples who are using surrogacy to have children are urged by specialist family lawyers to ensure they understand the legal implications of the issue.

Data from the Children and Family Court Advisory and Support Service (CAFCASS) has revealed that the number of applications from adults seeking parental rights in relation to a child born through surrogacy has risen from just three in 1999/00 to 295 in 2015/16.

While this is a significant increase, Irwin Mitchell’s specialist Family Law team warn that a lack of understanding of the legal position on surrogacy in England and Wales may mean the figures are just the tip of the iceberg, with many other couples choosing not to formalise such arrangements.

The legal experts urge anyone considering surrogacy to ensure they properly follow the legal process, as a failure to do so could leave them unprotected from issues which could arise in the months and years ahead.

Kathryn Evans, Irwin MitchellKathryn Evans, an associate solicitor in Irwin Mitchell’s Family Law team, says:

“While the CAFCASS figures are an indication that many parents going through surrogacy have sought proper advice, we are concerned that there may well be many more who have buried their heads in the sand on this issue.

Many countries and legal jurisdictions across the world do give legal rights to the intended parents of a child born through surrogacy, but it must be stressed that there are no such automatic rights in England and Wales – even if both the sperm and egg of such intended parents are used in the process.

As such, it is vital that intended parents who plan to live in England and Wales with a child born through surrogacy apply for a parental order to ensure they have full legal rights in relation to that young person. Failing to do so could lead to significant issues in the long run.”

Discussing the issue further, Kathryn outlined the criteria that intended parents have to meet when applying for a parental order.

She explains:

“At least one of the parents would need to be domiciled in England and Wales, while one would also need to be a genetic parent. The child may also have to be living with the intended parents at the time of the application.

Consent for the application would also have to be provided by all individuals who under the law of England and Wales are automatically considered the child’s legal parents at birth. This will include the surrogate mother and, if she is in a marriage or civil partnership, her spouse or partner too. This should be provided a minimum of six weeks after the baby is born.

In addition, the surrogate mother should not have received any remuneration above reasonable expenses linked to having the baby, with this being a key point especially if surrogacy has taken place in a country where commercial payments to a surrogate mother are allowed. Finally, applications for an order should be made within the first six months of the child’s life.”

Kathryn adds:

“The courts will review all of this carefully so legal advice at the earliest possible stage is an absolute necessity. Getting this support will also allow parents to enjoy their precious time with the new addition to their family rather than enduring a prolonged and stressful legal process once the child has arrived.

Going through surrogacy can be a hugely emotional time for everyone involved, so it is vital that expectant parents do everything they can to ensure the process runs as smoothly as possible.”

Irwin Mitchell is a national law firm recognised as one of the country’s leading family law teams, with the expertise to advise you on the legal side of expanding your family. We can help minimise the stress so that you can focus on what matters to you. Our family lawyers specialise in a variety of areas including surrogacy, co-parenting, child arrangements, adoption orders and much more. You are invited to come to speak with us at the Show and we can explain to you further how we can guide you forwards, with an expert hand and a human touch, as you embark on your exciting path that lies ahead.

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