How does Surrogacy work?
Surrogacy exists in two forms; the first is known as the traditional form and is where the surrogate carries the child and her egg is used. Due to the advances of science there is also host or gestational surrogacy and is where the surrogate has no biological link to the child as a donor egg or the intended mother’s egg is used. It is this form of surrogacy which is has been seen in Tina’s storyline in Coronation Street.
Surrogacy is legal in the UK, however much of the controversy surrounding it arises when considering whether a surrogate can or should receive payment. It is legal to pay a surrogate reasonable expenses. However, it is illegal for surrogacy to be carried out on a commercial basis in the UK.
If you are considering a surrogacy it is often sensible to approach surrogacy charities and centres that can assist with finding a surrogate and forming a surrogacy agreement, for example COTS and the British Surrogacy Centre. It is sensible to have a written agreement that details the arrangements you have made but you need to be aware that no surrogacy arrangement is legally binding and solicitors cannot draft such agreements.
Who does the law recognise as the child’s parents at birth?
Currently at the time of birth the woman who carries the child is legally recognised as the child’s mother; this is the case in both forms of surrogacy.
If the surrogate is married or in a civil partnership and her spouse consented to the surrogacy he will be recognised as the child’s father, regardless of the fact there is no biological link. If the surrogate is not married the intended father can be legally recognised.
The surrogate should register the birth and be named as the mother on the child’s birth certificate along with any other second parent who is legally recognised.
By way of example, in Coronation Street Tina would need to register Jake’s birth first and could name Gary as the Father at that stage. However, Izzy would still continue to have no legal status in respect of Jake.
How do we become the child’s recognised parents? Obtaining a Parental Order
In order for both intended parents to be legally recognised it is necessary to end the legal status of the surrogate. This is achieved by obtaining a parental order though an application to Court, which is where a solicitor can help.
There is a strict timetable for making this application. The surrogate must be given six weeks to consider her consent and the application must be made before the child is six months old.
A parental Order will end the legal status and parental responsibilities of the surrogate and legally recognises the intended parents by granting them parental responsibility. A new birth certificate can be produced naming the intended parents, in the case of Coronation Street this would be Gary and Izzy.
To obtain a parental Order you must show:
- That at least one of you are domiciled in the UK
- That you are both over 18
- You are married, in a Civil Partnership or living together in an enduring relationship (it is not possible for a single person to apply for a parental Order)
- That the child’s home is with you
- Conception took place artificially (this can include home insemination)
- The surrogate (and if appropriate her partner/spouse) have freely and willing agreed to the making of the Order
- No more than reasonable expenses have been paid to the surrogate
Where there is a dispute regarding who the child shall live with and the arrangements for care of the child the law states that the Court will make a decision with the child as the paramount consideration and a decision will therefore be based on the best interests of the child.
If you wish to discuss any of the issues surrounding surrogacy, please contact us.