Opinion

Celebrating what 'Mum' means to you

9th April 2018

Celebrating what 'Mum' means to you

Whether birth mother, adoptive or foster, Mother’s Day is time to celebrate what ‘mum’ means to you.

Here in 2018, surrogacy is now playing a larger part in British family life, with more and more couples opting to go down this route. But a West Midlands legal expert in child welfare says when choosing surrogacy to have a child, caution needs to be taken and proper legal advice sought, to ensure that a surrogacy arrangement is legal.

Richard Port, of Higgs & Sons Family team, says: “When entering into a surrogacy arrangement, it is important that parental responsibility for that child is provided in accordance with the law, once the child is born.”

Richard goes on to offer the following timely advice.

Surrogacy arrangements in the United Kingdom

Surrogacy is legal in the UK, however, under the Surrogacy Act 1985 it is a criminal offence to:

  • advertise that you are seeking a surrogate
  • advertise  a service as a surrogate
  • advertise  that you are able to make surrogacy arrangements*
  • take payment (including solicitors) for negotiating the terms of a surrogacy agreement* (*unless they meet the exemptions under the act as a not-for-profit organisation)

He said: “It is worth noting that the restriction of advertising is worldwide.

“There are many not-for-profit organisations offering to assist couples in arranging surrogacy. It is vital that couples who are considering entering into a surrogacy arrangement obtain legal advice, as early as possible in the process.”

Payments to Surrogates

“Intended parents may wish to pay ‘reasonable expenses’ to the surrogate mother, for example to supplement loss of earnings or to pay for maternity expenses and maternity clothes. However, the court only allow for reasonable expenses to be incurred by the surrogate mother.

“There is no definition under the law, as to what constitutes reasonable expenses - the court will consider these on a case to case basis. This is an important consideration when entering into surrogacy arrangements.”

Surrogacy Agreements

The Human Fertilization and Embryology Act 2008 (as amended) sets out the law, procedure and regulation protecting surrogate mothers and intended parents. Richard said: “There are often misconceptions that under the law, surrogacy agreements are enforceable. However, this is not the case.

“Even when the intended parents and a surrogate mother incorporate their arrangements into a surrogacy agreement, a surrogate mother is free to renege on it, at any time up until the intended parents have been granted a Parental Order by the court that establishes them as parents in law.

“Once granted it transfers all legal status as parents to the intended parents, while at the same time extinguishing any legal status the surrogate mother would have. This order can only be applied for within six months of the child’s birth and with the consent of the surrogate mother. Under current law, only ‘couples’ can apply for this order. “It is only when the order is granted that the intended parents become the legal parents of that child.”

Changes in the law

Adoption is currently the only option available to ‘single’ parents to be granted the legal status of a parent of a surrogate child. However, unlike Parental Orders, adoption requires a full assessment by an adoption agency, to ensure they meet the criteria. This is seen by many as discriminatory.

Recently, in the case of  Re Z (surrogacy agreements) (Child arrangement orders) [2016] EWFC 34, the biological father of a child that was carried by a surrogate, challenged the court’s ruling that, as a single parent, he was unable to be granted a Parental Order for his child. His case was based on discrimination and that the law contradicted his human rights.

Richard comments: “In that case, the Judge ruled that the Human Fertilization and Embryology Act 2008 was incompatible with the Human Rights Act 1989. As  a result, the Government is currently in the process of preparing an amendment to the law, to ensure its compatibility with the Human Rights Act, by allowing ‘couples’ and ‘single’ parents  to apply for a court order, to recognise them as a child’s parent, without the need for adoption.

“We look forward to the Government providing clarity on this issue.”

Family issues are complex, as is the law surrounding them. Higgs & Sons Family team has a wealth of experienced specialists working alongside clients resolving matters for families throughout the region as well as nationally and internationally.

 

 

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