Married couples - individual wills need a joint approach
Another year has passed since our blog on the fast developing world of surrogacy. While overall the progress for reform in this area is slow, 2016 saw a number of developments which are highlighted below. Despite numerous discussions aimed at modernising and harmonising the surrogacy field, the situation is sadly still slow and complicated for parents trying to start a family via surrogacy. Parents must make sure that they have gathered information on both family and immigration law implications before navigating the potential minefield of starting a family using surrogacy.
According to research, “reproductive tourism” (of which international surrogacy is one aspect) is a multibillion-dollar global industry. However, the current form of regulation (or lack thereof in many countries where surrogacy takes place) is not straightforward and does not alleviate the legal and ethical challenges inherent in such an industry. In many cases, surrogacy is being pushed underground as country after country either places outright bans on commercial surrogacy or courts make decisions which do not help the family or, importantly, the children involved.
In England and Wales, talk of reform has finally reached fever pitch and the Law Commission has recently closed a consultation into reform of surrogacy laws. In December 2016, the issue was debated in the House of Lords, and positive comments were made in relation to the drafting and timely implementation of surrogacy reform. However it remains to be seen what changes will be made and whether this can be achieved in a short timeframe.
The Government has also taken positive steps in relation to single parents, following the ground breaking decision last year in the case of Z (A Child) (see our coverage of the case here). Following the declaration of incompatibility with the Human Rights Act, the Government has agreed to consider how best to update our legislation in order to remove such discrimination from surrogacy law in England and Wales.
One of the difficulties parents face with the current legislation is that a parental order cannot be made in circumstances where the surrogate is engaged in proceedings but refuses to consent to an order being made. This was the issue in the recent case of Re AB (Surrogacy: Consent), in which a surrogate mother’s refusal to give consent led to the parents’ application for a parental order being refused. While consent of the surrogate should clearly remain a part of the criteria to be met, as with many other areas of law, it may be necessary from the child's perspective to introduce a caveat that such consent should not to be unreasonably withheld, particularly in circumstances where the court otherwise considers a parental order to be in the best interests of the child.
As a brief reminder, the Human Fertilisation and Embryology Act in 2008 makes it clear that under English Law the surrogate, and her spouse if she has one, are the legal parents of the child on birth. The intended parents must therefore apply for a parental order after the child is born in order to formally recognise them as their child's the legal parents (if they meet the criteria set out in the Act) and to discharge the surrogate's and her husband's legal parentage.
For those researching which country to go to find their surrogate and undergo fertility treatment, it is worth remembering that whatever the law is in that country, this will not be recognised by the English legal system and a separate process will be required on return here. The law in many countries is changing rapidly and surrogacy is increasingly being banned in many places. South East Asia, which up until now has been seen as a major ‘hub’ for intended parents, has continued to clamp down on commercial surrogacy - with Thailand, Nepal and most recently Cambodia banning it outright. India has also restricted eligibility to a much smaller group of people.
Closer to home, Western nations including Germany, France and Italy have long since banned all forms of surrogacy. The same is true of certain states in the USA and Australia.
We have been instructed by a number of parents in recent years who have travelled to Russia, the Ukraine and the states in the USA, where surrogacy is legal, in order to start their family. Barring any sudden legislative changes, these are likely to remain popular for the near future. However, parents must remain mindful of the different immigration requirements and consider in advance how they will be able to bring their new-born back to the UK. Depending on the circumstances of the surrogacy arrangement, the child will not necessarily be British at birth, even if one or both of the intended parents is British. Parents are advised to seek advice at the earliest opportunity, to ensure that they are fully informed and prepared to spend months in the country their child is born while the immigration matters are dealt with.
Baroness Barker, who submitted the question of surrogacy reform for debate at the House of Lords, concluded as follows:
“We have shown the world that, in this field of assisted reproduction, it is possible to make laws that reflect the realities of modern life while protecting the best interests of children. Surrogacy is, and will remain, a matter of intense importance to a very few people, many of whom are often misunderstood”.
For those families who have chosen this path to parenthood, it is hoped that the path is made smoother in the near future, and we remain on hand to advise on the necessary requirements and make what should be a joyous occasion as stress-free as possible.
Surrogacy can be full of potential pitfalls and we recommend you spend time researching, reading relevant literature, speaking to others who have had a child through surrogacy and engaging a specialist lawyer to help you to understand the legal issues.
If you would like to speak to one of our specialist lawyers, please contact Connie Atkinson for family law advice, Katie Newbury for immigration law advice and our Private Client team for advice on Wills.
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