Surrogacy: a (very) short guide and some recent case law

Added in: Family

Surrogacy: a (very) short guide and some recent case law.

By Kate Akerman

1.. The BBC and other news outlets recently reported on proposed new legislation in Italy which will criminalise surrogacy arrangements within Italy and abroad, whether those arrangements are commercial or otherwise. In the UK non-commercial surrogacy is legal, and surrogacy arrangements made overseas are not criminalised per se. That, however, does not mean surrogacy is plain sailing.

What is surrogacy?

2.. Surrogacy is an arrangement whereby a woman agrees to bear a child for someone else, and to hand that child on birth to intended or commissioning parents who take over responsibility for the child.

The legal framework

3.. The Surrogacy Arrangements Act 1985, Part II of the Human Fertilisation and Embryology Act 2008 (the HFEA) and 2018 Regulations made thereunder govern parenthood in cases involving assisted reproduction and thus cases involving surrogacy. The surrogate is the legal mother of the child (even if a donor egg is used) [s33]. Her husband/civil partner is the child’s father (provided he consented to the assisted reproduction) [s35]. Similar provisions apply to the same-sex partner of a surrogate.

4.. An application for a Parental Order is made under Section 54 of the HFEA and Part 13 of the Family Procedure Rules. A Parental Order confers a life-long legal parental relationship between intended parents and child in this jurisdiction and extinguishes the relationship between the child and the surrogate. CAFCASS will be directed to appoint a parental order reporter to investigate the circumstances and submit a report.

5.. The Court may grant an order if the order meets the child’s welfare needs in accordance with section 1 of the Adoption and Children Act 2002 (ACA 2002). So far so easy. But… the section 1 criteria are only satisfied if:

  • The child has been conceived artificially and is genetically related to at least one of the intended parents (or to the intended parent in the case of a single applicant). Intended parents are those who are married, in a civil partnership or living as partners in an enduring relationship.
  • The intended parents have applied within 6 months of the child’s birth.
  • The child is living with the intended parents and at least one of them is domiciled in the UK.
  • The intended parents are over the age of 18.
  • The surrogate (and her spouse, if applicable) has freely given consent.
  • The surrogate has been paid no more than reasonable expenses, unless authorised by the court.

6.. So, a Parental Order is different to adoption in that it assumes a biological lineage. And, furthermore, currently, the law gives the birth mother a veto.

7.. Surrogacy arrangements are unenforceable and in some circumstances may be illegal. Nevertheless, the case law indicates that recourse to the law can still be had to regulate the care of the child or to secure legal relationships in line with welfare principles whether that is disapplying the statutory criteria to make a Parental Order, through adoption, or by making Children Act orders.

A couple of recent cases

8.. In Re N (Adoption – Surrogacy) [2024] EWFC 41[1], Mrs Justice Theis DBE considered an adoption application by a couple for N, who had reached the age of 18 by the time of the hearing. N was born as a result of a surrogacy arrangement in 2005 between the applicants and another couple, the respondents; the male applicant is the genetic father; the female surrogate the genetic mother. The applicants have another child A who was also born following a surrogacy arrangement with a different surrogate. That arrangement was straightforward, and the applicants secured a Parental Order for A with the full co-operation and consent of the surrogate. N’s arrangement was not, and the surrogates did not follow through with their part of the agreement retaining N in their care until 2007 when a Judge ordered that N should live with the applicants secured by a private law order following contested proceedings. In so doing, the Court found that the female surrogate had deliberately embarked on a path of deception driven by her compulsive desire for another child of her own and the insemination by surrogacy was for that sole purpose. A Parental Order was not an option available to the Court as the surrogates did not consent. N remained the subject of proceedings until 2010. There was provision for some direct contact to the surrogates. In 2023, the applicants sought to secure their legal relationship with N through adoption and to put him on a similar footing as A. This was something N very much wanted too. The application was opposed by the surrogates. Her Ladyship made an adoption order, dispensing with the consent of N’s legal parents. The Court was clear that the case needed to be decided on its own facts and that the “lodestar” governing the final determination remains the lifelong welfare needs of N.

9.. n Re Z (Foreign Surrogacy) [2024] EWFC 304[2] Mrs Justice Theis DBE considered an application for a parental order in relation to a 1-year-old child, Z. The intended parents were in a same-sex relationship, entering into a surrogacy arrangement via an overseas agency with a surrogate who came from a country where an arrangement involving same sex relationships is not permitted. The applicants knew this, but the agreement gave them no control over where the child was born. The Judge made a section 54 order, waiving the statutory time-limit and retrospectively authorised what might otherwise be regarded as a commercial element to the surrogacy fees (exceeding 70,000 EUR) (welfare, in this case, trumping public policy). The Court considered the public policy consideration flowing from the applicants’ knowledge that the surrogacy arrangement was entered into in a country which did not permit such an arrangement by reason of the applicants’ same-sex relationship. The Judge was horrified by the applicants’ lack of due diligence and the precarious position in which this left themselves, the surrogate and Z. However, the Judge concluded that there was no evidence of exploitation of the surrogate, who, she was satisfied, freely consented to the surrogacy and to the parental order and that Z’s welfare required the order to be made. The Court urged intended parents to exercise caution and care when embarking on surrogacy arrangements, particularly those which are cross-jurisdictional. The Court set out a non-exhaustive list of key considerations for intended parents to consider and emphasised the need to take expert legal advice before entering into a surrogacy agreement [para 4]. The list is interesting because there are what might be thought to be the most basic considerations which were overlooked: Does the surrogate speak/read English? If not, how is it proposed that she will understand any agreement she signs? What are the proposed arrangements for contact?

The future?

10.. The above are just two cases of many which illustrate pitfalls and problems around the current surrogacy framework. In March 2023, the Law Commission published a report[3] setting out a raft of recommendations aimed at modernising and clarifying surrogacy law in the UK, and encouraging domestic rather than international surrogacy, including:

  • A simplified parental order system.
  • Relaxation of the requirement for the legal mother/surrogate to consent where the child’s welfare requires it, bringing surrogacy in line with adoption.
  • Greater clarity and guidance on the rights and responsibilities of all relevant participants.
  • Enhanced legal protections for surrogates.
  • Introduction of a Surrogacy Register enabling children to have access to their birth origins when they are older.

11.. Commentators are divided as to whether the recommendations go too far or not far enough. Parliament has yet to respond fully to the report. For further reading as to the ethical considerations see the Nuffield Council on Bioethics Briefing Note[4].

[1] https://www.bailii.org/cgi-bin/format.cgi?doc=/ew/cases/EWFC/HCJ/2024/41.html&query=(surrogacy)

[2] https://www.judiciary.uk/wp-content/uploads/2024/10/Re-Z-Foreign-Surrogacy.pdf

[3] https://lawcom.gov.uk/project/surrogacy/

[4] https://www.nuffieldbioethics.org/assets/pdfs/Surrogacy-law-in-the-UK-ethical-considerations-1.pdf

Kate akerman