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UK government to review parenthood following surrogacy

7 September 2009
Appeared in BioNews 524

The UK's Department of Health last week launched a consultation on the regulation of 'Parental Orders', which are used to transfer legal parenthood from a surrogate (and her husband or partner if she has one) to the couple who commissioned the surrogacy arrangement. In English law, the woman who gives birth to a child will always be its legal mother at birth, no matter how it was conceived. This has obvious implications for those entering surrogacy arrangements.

According to the current law, only married couples (in which one partner is also genetically related to the child) are able to apply for a Parental Order, however, new legislation extends this right to civil partners and also to parents (opposite and same sex couples) where there is no formal union, as long as they are 'living as partners in an enduring family relationship'.

However, new Regulations will be necessary to establish how the courts will grant Parental Orders in these new circumstances, and it is these that the consultation will focus on. The new Draft Regulations are supposed to bring the process for granting Parental Orders more closely into line with modern adoption law. The consultation concerns the content of the Draft Regulations, including ensuring certain factors are taken into account such as the welfare of the child, as well as setting out the legal status of the child who is the subject of a Parental Order, the powers of the court and provisions about the Parental Order Register.

Last week, parts of the Human Fertilisation and Embryology (HFE) Act 2008 that relate to parenthood came into force, allowing women in same-sex relationships to be named on their child's birth certificate, giving them the same rights as heterosexual couples conceiving through donated eggs or sperm. This means that from now on, the civil partner of the woman who gives birth will automatically be regarded as the second legal parent, unless they can show that they did not give consent to the procedure. However, at present only lesbian couples and single women can benefit from the changes to the law. When the new Parental Order Regulations come into force it will also be possible for male couples who have had a child through egg donation and surrogacy to both be named as parents on the child's birth certificate, by granting them a Parental Order to transfer legal parenthood.

The Draft Regulations are specifically not intended to open up any other debate on surrogacy or its regulation, despite the fact that the new HFE Act and the consultation process leading up to it did little to re-address the issues that surrogacy brings up, including those relating to parenthood. Natalie Gamble, who jointly set up Gamble and Ghevaert LLP, the first law firm in the UK to specialise exclusively in fertility and parenting law, commented previously in BioNews that the law changes may not address problems around surrogacy arrangements entered into abroad. She wrote: 'What many patients do not realise is that if they are domiciled in the UK, UK law applies to them regardless of where the conception occurs. This can result in the unfortunate situation where, at birth, neither the surrogate nor the intended parents are legal parents under their own home systems of law and the child is born an orphan. Any foreign birth certificate naming the English parents as the legal parents cannot be relied upon for UK legal purposes.'

The consultation will address the Regulations under which courts are permitted to grant Parental Orders. It will be open from 1 September until 23 November 2009. Information on how to respond is available on the Department of Health website (link below).

Consultation on a review of Parental Order Regulations
Department of Health |  09/09
30 April 2010 - by Louisa Ghevaert 
Birth certificates have been a hot topic in the UK in recent weeks. There has been much controversy, confusion and misunderstanding, aptly shown by Caroline Gammell's article in The Daily Telegraph newspaper and Colin Fernandez's article in the Daily Mail on 19 April incorrectly hailing the advent of the first lesbian couple to both be named as parents on their baby daughter's birth certificate, born 31 March this year. Lesbian couples have not in fact had to wait until the beginning of April...
29 March 2010 - by Ailsa Stevens 
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 Fertilisati...
1 March 2010 - by Dr Elly Teman 
Regulation is important, but we are not discussing the most fundamental issue at hand: the human experiences that make or break surrogacy relationships. What common factors can be identified behind the small number of surrogacy cases that wind up in court?...
9 February 2010 - by Louisa Ghevaert 
A northern Indiana couple are the latest in a series of people to become embroiled in a legal battle in the US following the birth of a child conceived through surrogacy. They follow in the footsteps of a recent series of high profile and hard fought US legal parentage battles involving surrogate-born babies. As demand for surrogacy grows worldwide and its practice remains largely unregulated, surrogacy continues to raise difficult legal, ethical and emotional questions which a...
29 October 2009 - by Nishat Hyder 
Following new UK government guidelines on surrogacy published last month aimed at improving the rights of surrogacy patients, Ministers are now facing a new legal challenge calling for further changes in the law....
14 April 2009 - by Sarah Pritchard 
New legislation has came into force in the UK which will help to create a 'level playing field' for same-sex couples undergoing IVF treatment. The Human Fertilisation and Embryology Act 2008, which received Royal Assent in November last year, makes provision for both women in a civil...
12 January 2009 - by Louisa Ghevaert 
Pressure for a review of surrogacy law is mounting in legal, media and political quarters following the case of Re X & Y (Foreign Surrogacy) 2008 (reported in Bionews on 14 December 2008). The case - the first to test the law for British couples going abroad for surrogacy - has highlighted the...
28 April 2008 - by Natalie Gamble 
The Human Fertilisation and Embryology (HFE) Bill is currently wending its way through Parliament amidst a storm of controversy and debate. An issue which has provoked very little attention is surrogacy, and yet this is where the law most desperately needs reforming. Surrogacy arrangements currently get the raw end of...
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