29 March 2010
ByAppeared in BioNews 551
New legislation allowing same-sex couples to become the legal parents of children born following surrogacy will come into force next week. The change to the law means that couples using surrogacy no longer need to be married to be named on their child's birth certificate and is intended to afford unmarried and same-sex couples using any form of assisted reproduction the same rights to legal parenthood. It forms the final stage of the implementation of the UK's Human Fertilisation and Embryology Act 2008.
Natalie Gamble, of the fertility law firm Gamble and Ghevaert, said that the new law would help ensure equality for same-sex parents. 'These changes bring the law up to date with the realities of modern 21st-century life and recognise that increasing numbers of same-sex and unmarried couples are having children together', she told the Guardian newspaper.
The law states that the woman who carried the child is automatically considered to be the legal mother. Previously, the only way that lesbian and gay couples could become the legal parents of a child born following surrogacy would have been to undergo a lengthy adoption process, as same-sex couples were not eligible to apply for parental orders - legal orders that transfer parental status onto the commissioning parents provided certain criteria are met.
The new law addresses this problem by allowing all couples who use a surrogate to apply for a parental order after the birth, regardless of their sexual orientation. Requirements for obtaining a parental order include that the couple are in a stable relationship, have entered into a surrogacy agreement without payment beyond expenses, and that at least one of the couple has a biological link to the child. According to principles of family law, an order can only be made if it is in the best interests of the child to do so. If all the conditions are met, a parental order will be issued allowing both intended parents to be named on the birth certificate, and making them legally and financially responsible for their child. The child will be able to trace their biological mother when they reach 18 if they wish, but the names of their legal guardians will be listed on the birth certificate.
The new change will have particular significance for gay men, says Natalie Gamble: 'Lesbian couples and unmarried couples usually have other routes available to them if they want to have children, but surrogacy is particularly important to gay men, so they will get most out of this change in legislation'.
Although the updated law helps to bring much-needed clarity to the law around surrogacy, there are still issues that urgently need addressing. 'There are particular pitfalls for single parents and those going abroad. In the latter case, a couple returning to England with a surrogate child find that the law does not recognise their right to parenthood. It can cause immense distress. There are a lot of aspects of surrogacy that now need to be addressed urgently', said Natalie Gamble.