International Surrogacy: not just for celebrities?

13 January 2011

The debate surrounding Surrogacy is likely to be one of the hot topics of 2011, following the announcement that Elton John and David Furnish became parents (on Christmas day 2010) to Zachary Jackson Levon Furnish-John, who was born to a surrogate mother in the US. Since 28 December, the UK press has been jam packed with articles debating the morality of gay surrogacy and the changing face of the traditional “nuclear family”.

The Law in relation to surrogacy in England and Wales is moving forward at a pace. As of 6 April 2010, civil partners have been able to apply to the English Court for a parental order following the birth of a child via a surrogacy arrangement (which has the effect of recognising the applicants under English law as the legal parents of the surrogate child). To obtain a parental order, the applicant’s must comply with the conditions set out in section 54 of the Human Fertilisation and Embryology Act 2008 (“HFEA”).

One of the most widely publicised criteria is the requirement that no money or other benefit, other than for reasonable expenses, has been given to the surrogate mother. If the surrogacy is a commercial arrangement entered into in the US or the UK, it is highly likely that payments have been made to the surrogate mother above and beyond her reasonable expenses. It is reported that Elton John paid £100,000 to his surrogate and that sort of figure is not out of place in US surrogacy agreements. The English Court does, however, have the discretion to retrospectively authorise payments made to the surrogate mother and will do so in the appropriate circumstances. In a very recent reported case (judgment was given in December 2010) Mr Justice Hedley confirmed that the welfare of the surrogate child will be the Court’s paramount consideration when considering applications for parental orders and the authorisation of payments made to the surrogate.

Surrogacy arrangements give rise to many legal complexities, not only from a family law perspective but also immigration issues if the child is born abroad. Kingsley Napley’s family and immigration teams offer bespoke advice about the complexities of assisted reproduction. For more information, please click here.

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