Mackrell Turner Garrett

National Lawyers, Internationally

 

Surrogacy Agreements are based on Trust not Law

 
 
 
White Collar Crime
 

Viewers of the ITV soap Coronation Street may have been surprised to learn that Tina (the Surrogate Mother) is perfectly within her legal rights to refuse to hand over the child she agreed to have as a surrogate for biological parents, Izzy and Gary. In the soap Izzy is unable to carry a child due to her disability and so the couple entered into a surrogacy agreement with Tina. An embryo was created using Izzy’s egg and Gary’s sperm and therefore the child is biologically theirs, Tina has no genetic link to the child. However, having carried and given birth to him Tina now feels such a strong emotional attachment she is refusing to hand him over to Izzy and Gary as agreed.

Clearly this storyline is extremely emotional and portrays a distressing situation which couples considering surrogacy could easily find themselves in. It is vitally important for surrogate mothers and intended parents to obtain legal advice before entering into such agreements to ensure they are aware of the complex legal issues that surround surrogacy.

Surrogacy is where a woman (the mother) agrees to become pregnant, usually by medical treatment, for the purposes of another person or persons (the intended parents). Full surrogacy involves the implantation of an embryo created by the eggs and sperm of intended parents, donated egg fertilised with sperm from the intended father or an embryo created using donated eggs and sperm. Partial surrogacy involves sperm from the intended father and an egg from the surrogate mother.

The law in England and Wales says that a surrogate mother, whether she conceived a child by natural means or with medial assistance, is the natural birth mother and therefore has parental responsibility of the child from birth. Regardless of whether full surrogacy or partial surrogacy the mother who gives birth to the child will initially be the child’s legal mother until a parental order is made or adoption takes place.

The intended parents can only become the legal parents of a child born to a surrogate mother by applying for a parental order or adopting the child – both of which require the surrogate mother’s consent. A parental order transfers the rights and obligations of parentage to the intended parents providing certain conditions are met i.e. the application is made within 6 months of the child’s birth, at least one of the intended parents are genetically related to the child, and the intended parents are two persons living as partners, or are married or in a civil partnership.

The Human Fertilisation and Embryology Act 2008 sections 54(6) and 54(7) require a mother to give her free and unconditional consent to the grant of a parental order not less than 6 weeks after the birth of the child. There is a statutory 6 week cooling off period for the surrogate mother to make the informed decision and give her valid consent. In the soap Tina is therefore within her rights to withhold her consent as she has changed her mind about the agreement.

In reality there have been few reported disputed domestic surrogacy cases recently but the following case is noteworthy and has similar circumstances to Tina, Izzy and Gary’s situation in the soap:

Re T [2011] EWHC 33 (Fam), partial surrogacy had taken place using the intended father’s sperm and the surrogate mother’s egg. It was intended that after the birth the surrogate mother would hand over the child to the intended parents and payments were made to the surrogate mother throughout the pregnancy to cover her expenses. During the pregnancy the surrogate mother changed her mind and when the child was born she refused to hand her over as agreed. The intended father applied to the court for a residence order for the child to live with him and his partner but in considering all the circumstances of the case the Judge made a decision based on the best interests of the child and a residence order was made in favour of the surrogate mother.

It is important to note again at this point that English Surrogacy arrangements are not contractually enforceable as a matter of public policy and remain informal based on trust.

The Surrogacy Arrangements Act 1985 governs surrogacy in England and Wales. Surrogacy itself as such is not illegal. It is illegal to advertise or create commercial surrogacy arrangements i.e. broker the meeting of a mother and intended parents. However, it is not illegal for Woman A to have a child for person B provided no money changes hands but for woman A’s reasonable expenses.

WARNINGS:

  • Surrogacy arrangements/contracts, whether verbal or in writing, are not legally enforceable in England and Wales;
  • Commercial Surrogacy agreements are illegal;
  • A Surrogate mother will be the legal mother of the child until parental responsibility is transferred via a Parental Order or adoption;
  • A Surrogate mother will have the legal right to keep the child, even if there is no genetic tie;
  • Surrogacy arrangements are based on trust not law;
  • Surrogacy involves complex legal issues and all parties should seek legal advice prior to considering such agreements.