Change in law for surrogate parents
7th April 2010 by: David Lillywhite
Surrogacy law experts have warned this week that British couples who pay overseas mothers to have a child for them could no longer be recognised as parents under English law, amidst accusations of couples effectively reducing children to commodities, bought and sold to the highest bidder.
While surrogacy is not illegal in the UK, the practice is heavily regulated. It is currently a criminal offence for an individual to advertise that they are looking for a surrogate or that they are willing to act as a surrogate. Under the present legislation, prospective parents entering into an agreement with a surrogate mother are allowed to provide her with finance for “expenses reasonably incurred” which can include living expenses, salary missed during pregnancy and medical bills. The same caveat applies to surrogate mothers based overseas, where payments of up to £30,000 are being made. It is also an offence to arrange a surrogacy on a commercial basis. With such disproportionate and obviously commercial sums now changing hands, it is surely only a matter of time before the court declines to endorse a payment of this size, refusing to grant a parental order and effectively denying a couple status as parents under English law.
In the case of Mr and Mrs A, heard last November, Mr Justice Hedley heard that a couple had paid the sum of $23,000 for twins from a surrogate based in California. While he still granted a parental order to the pair, effectively making them the parents of the twins, he noted that “a significant element although it is difficult to specify what, of the $23,000 represents a payment contrary to the [law]” saying that “the court should be astute not to be involved in anything that looks like the simple effect for buying children”.
On 6 April, the law changed to allow same-sex and unmarried couples the ability to apply for parental orders. As a result, the number of couples seeking to have a child through a surrogate is likely to rise with many families looking abroad to agencies who will take a flat fee to handle every aspect of obtaining a child in this way. Couples approaching the issue of surrogacy should consult a specialist family lawyer to ensure they are taking the correct steps now to avoid complications in future.
While surrogacy is not illegal in the UK, the practice is heavily regulated. It is currently a criminal offence for an individual to advertise that they are looking for a surrogate or that they are willing to act as a surrogate. Under the present legislation, prospective parents entering into an agreement with a surrogate mother are allowed to provide her with finance for “expenses reasonably incurred” which can include living expenses, salary missed during pregnancy and medical bills. The same caveat applies to surrogate mothers based overseas, where payments of up to £30,000 are being made. It is also an offence to arrange a surrogacy on a commercial basis. With such disproportionate and obviously commercial sums now changing hands, it is surely only a matter of time before the court declines to endorse a payment of this size, refusing to grant a parental order and effectively denying a couple status as parents under English law.
In the case of Mr and Mrs A, heard last November, Mr Justice Hedley heard that a couple had paid the sum of $23,000 for twins from a surrogate based in California. While he still granted a parental order to the pair, effectively making them the parents of the twins, he noted that “a significant element although it is difficult to specify what, of the $23,000 represents a payment contrary to the [law]” saying that “the court should be astute not to be involved in anything that looks like the simple effect for buying children”.
On 6 April, the law changed to allow same-sex and unmarried couples the ability to apply for parental orders. As a result, the number of couples seeking to have a child through a surrogate is likely to rise with many families looking abroad to agencies who will take a flat fee to handle every aspect of obtaining a child in this way. Couples approaching the issue of surrogacy should consult a specialist family lawyer to ensure they are taking the correct steps now to avoid complications in future.
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