#PrideMatters : Spotlight on surrogacy

Surrogacy has been in the news again recently, with Olympic diver Tom Daley and his husband Dustin Lance Black welcoming their son, Robert Ray, who was born earlier this year following a surrogacy arrangement in the US. This is not quite the end of Tom’s and Dustin’s long journey to become parents as they will now have to take steps in England to formally recognise them as Robert’s fathers.

The family, who will have a base in London, will need to apply for a Parental Order within 6 months of Robert’s birth.  The Parental Order will mark the final stage in what is often a long and sometimes challenging path for intended parents.  The Order is required to extinguish the parental responsibility and legal parentage of the surrogate and her husband (if she has one) and recognise the intended parents as legal parents.

Although our law has further to go to get entirely up to speed with advancements in science and social and societal progress, it is easy to forget how the law has come on leaps and bounds in the last 10 years. Until the Human Fertilisation and Embryology Act 2008 (“HFEA 2008”), Parental Orders were only available to heterosexual, married couples. The HFEA 2008 opened up the availability of Parental Orders to same sex couples, namely those in civil partnerships and also to couples of any gender in a long-term and enduring relationship. This important development broadened the availability of surrogacy and, importantly, the ability to formalise that arrangement by way of a Parental Order to a whole host of intended parents wishing to build their family in that way.

The court is concerned with two main issues on considering whether to make a Parental Order, namely, whether the statutory criteria under section 54 HFEA 2008 are met and whether the making of a Parental Order in favour of the intended parents is in the child’s best interests. The Parental Order process in this country is the same for all intended parent applicants and, rightly so, the court makes no allowances or places no further hurdles for intended parents who are in same sex marriages, long-term enduring relationships, civil partnerships or heterosexual marriages.

Although the law no longer distinguishes between same sex and mixed sex couples when considering parental order applications, there are some practical differences which arise.

• For many heterosexual couples, the initial stages of their journey to building a family will begin with attempts to conceive naturally followed usually by IVF treatment. With same sex partners the ability to conceive naturally is not available and so couples will be looking to donor eggs or sperm from the outset.

• When searching for a surrogate, same sex couples need to be aware that surrogacy is not permitted for same sex couples in some countries.  Even if permitted, same sex couples may also want to check whether both of their names can be put on the foreign birth certificate at birth.

• When looking at whether the making of a Parental Order is in the child’s best interests, the court will appoint a Parental Order Reporter (POR) to meet with the intended parents and the child and prepare a report to the court recommending whether or not a Parental Order should be made. As part of the reporting process, the POR will want an idea of how the intended parents will talk to their child about their journey and the very special way in which they came into the world. This is something that, in our experience, same sex couples tend to have already given thought to as they are prepared for questions about why their child has two Mums or two Dads. The expectation applies for heterosexual couples also but the same questions may not automatically arise when their child is young. While at least one of the intended parents needs to be genetically linked to the child in order to comply with the statutory criteria, the law is clear that upon the making of a Parental Order, both applicants have equal status before the law as legal parents of the child.  Same sex couples will have used either a donor egg or donor sperm and so thought needs to be given to the way in which children born of surrogacy learn about their origins, their genetic links and heritage whilst also having a firm sense that the intended parents are their parents.

It is hoped that conversations about parentage (such as the above) will become easier as more guidance becomes available and the existence (along with our awareness and appreciation) of alternative family structures deepens and becomes ever more commonplace.  

Olivia Stiles is an Associate and Connie Atkinson is a Senior Associate in Kingsley Napley’s Family team. They both have experience of working with LGBT couples going through the surrogacy and Parental Order process. For more advice, please contact us here.

Kingsley Napley are publishing a series of blogs to celebrate Pride and to raise awareness about the issues facing LGBT+ people in our communities. You can view our other blogs here.