The opportunities and pitfalls of surrogacy for same sex couples

5 May 2016

Reports last week of a gay couple fighting for custody of their surrogate child give a harsh warning on the pitfalls of international surrogacy.  Happily, the couple have won their custody battle with the surrogate mother, who changed her mind about handing over the child when she discovered the intended parents were a gay couple. 

The American-Spanish couple entered into a surrogacy arrangement in Thailand where same sex marriage is not recognised.  Their child was born in January 2015. Thailand is no longer an option for foreign surrogacy, which since this case has been banned, but we find that when one country closes its borders to international surrogacy, another one opens, and intended parents must be extremely cautious when choosing where to enter into their surrogacy arrangement (and where the child is to be born). 

This sad story is not  a regular occurrence in our surrogacy practice. Whilst there have been other headlines about disputes between the surrogate and the intended parents, it is very rare in practice that a surrogate mother will not hand over the child (although note, in England, surrogacy contracts are not enforceable).  Gay couples must be vigilant and diligent in their exploration of countries purporting to offer surrogacy. Couples should take legal advice about local surrogacy laws and explore the cultural approach of that country to same sex marriage and gay relationships. 

We don’t intend to dissuade gay couples from considering surrogacy; it is a wonderful, life changing decision and we have seen many couples who have had fantastic experiences with agencies and surrogates. We would, however, urge couples to do their research and read our top tips if you are considering surrogacy as a gay couple:

  1. The  availability of surrogates in the UK is limited – in part due to the legal restrictions on advertising  for surrogacy
  2. Surrogacy contracts/agreements are NOT enforceable in the UK
  3. Because of the limitations of surrogacy in the UK, many couples go abroad.  There is an ever increasing number of  countries with surrogacy industries. The most popular, gay friendly, surrogacy market continues to be California in the USA (and some other US states although note the recent FCO warning to gay British Citizens travelling to North Carolina/Mississippi).  Canada now has a developing surrogacy market, including for gay couples. It is critical  to research the particular country’s views on gay surrogacy BEFORE you enter into an arrangement  in that country.  Do not make the decision solely on the basis of cost
  4. Surrogacy is not currently regulated so couples need to beware of scams; research the clinic and your chosen agency very carefully and ask to speak to previous clients of the agency about their experiences before you sign up. Try to speak to a surrogacy expert in the UK, preferable someone who has been through the process themselves
  5. Choose your surrogate mother carefully, check her views on gay surrogacy and make sure you give her full disclosure of your family circumstances
  6. In the UK, it is illegal for a third party to negotiate a surrogacy agreement on a commercial basis. So, your UK legal advisor will not be able to advise you on the surrogacy contract.  Make sure you engage a specialist lawyer in the relevant jurisdiction where the surrogacy is to take place and find out about local laws, how they will impact you and whether there is any likelihood of legislative change that would make things more difficult
  7. Under English law, no matter where the surrogacy takes place, the surrogate mother is the legal mother of the child and has parental responsibility for the child meaning all legal rights and responsibilities in relation to the child (e.g. passport applications, schools, medical treatment). This is the case even if you are recognised as the legal parents in the country of birth.  You will need to regularise your legal relationship with your child; you will not have automatic parental responsibility for the child until you have obtained a Parental Order
  8. A Parental Order is necessary even if you are named on the birth certificate or you have applied to become the legal parents in the country of birth (for example, in the US, couples  can apply for a pre-birth order naming them as the legal parents)
  9. Immigration issues will arise if you go abroad for surrogacy.  Take early advice about the immigration position in the country of birth.  In the US, the  child will be granted a US passport, meaning you can usually travel back to the UK shortly after birth. In other countries, check carefully whether the child will be entitled to a passport of the country of birth. If not, you may need to make a UK passport application from abroad so that the child can travel to the UK on a British passport and you will need to take advice about whether the child will be entitled to obtain such a passport. Beware you could be stuck in the country for a significant period of time (since applications from abroad can take over 16 weeks and the child may need to be registered as British first)
  10. Couples who have children through surrogacy arrangements are now entitled to paid maternity or paternity leave in the UK. Check your employment contract and policies and speak to your employer about the time you are likely to take off work.

Further information

Surrogacy can be full of potential pitfalls and we recommend you spend time researching, speaking to others who have had a child through surrogacy, reading relevant literature 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 and Katie Newbury in our immigration team.

You may also be interested in reading our Frequently Asked Questions or previous blogs on international surrogacy.

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We welcome views and opinions about the issues raised in this blog. Should you require specific advice in relation to personal circumstances, please use the form on the contact page.

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