English surrogacy law has its roots in the 1980s. In 1985, the ‘baby Cotton’ case (involving surrogate mother Kim Cotton who had been paid £6,500 to carry a child through surrogacy) prompted Parliament to implement the Surrogacy Arrangements Act 1985. The Surrogacy Arrangements Act 1985 prohibits the entering into or negotiating of a surrogacy arrangement on a commercial basis. It also states that surrogacy agreements entered into are unenforceable in the UK. It is a criminal offence in the UK to advertise that you are looking for a surrogate mother, you are willing to act as a surrogate mother, or you are a third party willing to facilitate the making of a surrogacy arrangement.
Under English law, the surrogate will be the legal mother of the child unless parenthood is transferred through a parental order or adoption after the child’s birth. The legal father will be the surrogate’s husband, civil partner, or partner, unless parenthood is transferred through a parental order or adoption. As a result, the Human Fertilisation and Embryology Act 1990 (HFEA 1990) introduced the parenthood rules and the concept of parental orders. A Parental Order is the legal mechanism for transferring the status of a parent from the surrogate to the commissioning parents. Under the amended HFEA 2008, the category of people who can apply for a Parental Order has been extended to include civil partners and unmarried partners.
The Court may make a Parental Order if the conditions set out in section 54 of the HFEA 2008 are met. The conditions include (but are not limited to):
- The application must be made more than six weeks and less than six months after the birth.
- At least one of the applicants must be genetically related to the child.
- Either or both of the applicants must be domiciled in the UK.
- The Court must be satisfied that the surrogate mother has freely, and with full understanding of what is involved, agreed unconditionally to the making of the Parental Order.
- No payments have been made to the surrogate mother, other than reasonable expenses.
There have been numerous cases, which highlight the difficulties of dealing with conflicting laws of two jurisdictions. If a surrogate child was born outside the UK, the prospective parents can apply for a parental order only if they are living in the UK. While waiting for the parental order, the child will require a visa in order to enter the UK.
Complex rules dictate the procedures for bringing a surrogate child into this jurisdiction. The child may not automatically qualify for registration or citizenship, and as such, immigration advice should be sought at the outset.