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Moving surrogacy law forward? The Department of Health's consultation on parental orders

27 October 2009
By Natalie Gamble and Louisa Ghevaert
Partners with specialist fertility law firm Gamble and Ghevaert LLP (
Appeared in BioNews 532
Of all the prospective parents conceiving through assisted reproduction, those in surrogacy arrangements often face the most difficult legal issues. The surrogate and usually also her husband will be treated as the child's legal parents at birth, leaving the commissioning parents with no legal connection with their child whatsoever, even where both are the biological parents.

There is a special remedy available called a parental order. This is an order made by the family courts which reassigns parenthood after surrogacy, extinguishing the responsibility of the surrogate parents and transferring it to the commissioning couple. The process takes place post-birth: the application must be made within the first six months of the child's life (though the surrogate's consent is ineffective until after the first six weeks) and typically takes many months to be processed by the courts. At present, only married couples can apply, but as from 6 April 2010, unmarried and same sex couples will also be eligible.

The Department of Health (DH) is currently consulting on new draft regulations which prescribe the detail of this court process, and which will replace existing regulations that have been in place since 1994. The consultation closes on 23 November.

What is in the draft regulations?

Like the existing regulations, the proposed revised regulations apply provisions of adoption law to the parental order application process, setting out court procedure and giving a surrogate child broadly the same legal status as an adopted child. Adoption law has itself been overhauled substantially in recent years, and this is reflected in the wording of the new regulations. However, as part of the general updating, there are some important revisions being made to the existing parental order system which need to be looked at carefully.

For example, a court considering whether to grant an adoption order now has to first consider the 'welfare checklist', a prescriptive list of considerations which includes ascertaining the child's wishes and feelings and considering his or her relationship with the birth family. The new parental order regulations incorporate this checklist into the parental order process. However, it does not seem appropriate for the court to have to address all these issues in surrogacy cases, given that the child will inevitably be less than six months old, and will be already living with the applicants (at least one of whom is his or her biological parent).

Importing the new adoption law without amendment fails to adequately take account of the special nature of surrogacy arrangements, and there may be a risk that this could make the process of applying for a parental order even more onerous than before. While a parental order is similar to an adoption order (in the sense that it transfers legal parenthood from one person to another), surrogacy is very different from adoption. Because a surrogate child (or at least those to which parental orders can apply) is biologically connected to at least one of the commissioning parents and is almost invariably in their care from birth, the dynamic of the family is perhaps closer to donor conception than to adoption. Adapting adoption law is therefore a difficult task, and one which we think could be handled more carefully by the regulations.

The parental order system

Even though a more fundamental review may not be within the power of these regulations, it seems impossible to look at any legislation relating to parental orders without making the point that the whole system is problematic. Parental orders were introduced as a late amendment to the Human Fertilisation and Embryology Act 1990 in response to a specific surrogacy case. At the time, surrogacy was viewed as very rare and something which occurred largely on the fringes of the law and ethical acceptability. The 1990 rules on legal parenthood clearly prioritised donor conception (making the carrying mother the legal mother, and her husband the legal father), and parental orders were designed as a limited remedy - a 'sticking plaster' - in respect of the awkward application of legal parenthood rules in surrogacy situations.

As all those working in this field know, things have changed radically since then. Surrogacy as a form of fertility treatment has blossomed, both in the UK and abroad, and no longer affects just a small number of altruistic inter-family arrangements. Indeed, the Human Fertilisation and Embryology Act 2008 itself has endorsed this, by legalising non-profit making surrogacy agencies like Surrogacy UK and COTS (Childlessness Overcome Through Surrogacy) and extending the categories of couples eligible to apply for parental orders. We are also seeing growing numbers of fertility patients travelling abroad for surrogacy, which brings even more complex legal challenges.

The current system, which came about by historical accident rather than a concerted policy decision, fails to meet this increased demand, and is inadequate from almost every perspective. The surrogate and her husband (who, in the vast majority of cases do wish to surrender the child) remain legally and financially responsible for the child for up to a year after the birth, and may have no legal redress against intended parents who refuse to assume responsibility. The intended parents often have no status in respect of their child for many months, including no right to make decisions or to consent to immunisations, no right to transmit inheritance or citizenship rights automatically and the intending mother has no rights to maternity leave (though this is the subject of another current campaign), leaving children very vulnerable during the early months of their lives.

The system is not an effective guardian of public policy against commercial surrogacy, since the check on payments comes at the end the process (by which time any payments have already been made) and the only sanction available to the court is a refusal to grant an order, which is almost impossible to enforce since this would prejudice the welfare of a newborn child. And, most importantly of all, these problems mean that surrogate children lack even basic protection. The problems are highlighted most starkly in foreign surrogacy cases. For example, in the landmark case of Re X and Y (foreign surrogacy) [2008], the law left surrogate twins born abroad to a British couple stateless and parentless. Such children risk being abandoned to foreign state care in the absence of complex and expensive legal intervention - surely this is an outcome which the law has an obligation to avoid at all costs.

We need a better and more planned approach to surrogacy. Of course, there are difficult and sensitive issues to be handled in creating new law. Surrogacy arrangements are among the most ethically and humanly complex in assisted reproduction, with three or even four adults involved throughout the process of conception, pregnancy and birth, and possibly third party gamete donors as well. The respective interests, protection and independence from exploitation of all these adults and, most importantly, the resulting child, need to be adequately balanced and protected by the law.

It is disappointing that such issues were not properly addressed during the government's overhaul of assisted reproduction law last year. Although the Minister indicated that surrogacy was a sensitive issue which would be looked at separately, no firm commitment for this review, or a date, has yet been set - and it seems, given the current 'status' of surrogacy - odd to continue treating it separately. In order to ensure that our law can cope with the demands of modern surrogacy practice, and to ensure that vulnerable children are protected, we urge the government to take a fresh look, not only at the regulations, but at the law itself.

Consultation on a review of Parental Order Regulations
Department of Health |  09/09
26 November 2012 - by Sarah Pritchard 
The right to maternity leave in the UK will be extended to parents of children born through surrogacy, under proposed changes to rules on parental leave recently announced by the Government....
19 September 2011 - by Nishat Hyder 
A US businesswoman is suing her employer after she was allegedly denied maternity leave following the birth of her twins through a surrogate mother...
18 April 2011 - by Ayesha Ahmad 
A couple must pay over £500 monthly maintenance to a surrogate mother who decided to keep the baby...
15 November 2010 - by Rosie Beauchamp 
The London Women's Clinic (LWC) has reportedly received an application for fertility treatment by two gay men wanting to raise a child who wish to use one of the couple's sister as a surrogate....
11 October 2010 - by Nishat Hyder 
A couple from British Columbia, Canada, have been embroiled in a complex ethical battle after their surrogate refused their request to abort the fetus she was carrying. The couple made the request after tests revealed the baby would likely be born with Down's syndrome...
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....
16 October 2009 - by Sarah Elliston 
1 October 2009 marked the second and major phase of the coming into force of the amendments to the Human Fertilisation and Embryology (HFE) Act 1990 made by the HFE Act 2008. The first phase, in April 2009, concerned parenthood provisions and the third and final phase (expected April 2010), will affect parental orders in surrogacy arrangements. Even from a legal perspective it is unfortunate and rather baffling that these changes have been brought about by amending the original legislation...
7 September 2009 - by Ailsa Stevens 
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 the surrogate (and her husband or partner if she has one) to the couple who commissioned the surrogacy arrangement. Prior to the Human Fertilisation and Embryology Act 2008, only married couples were able to apply for a parental order, however, the new rules will extend this right to parents where there is no formal union, including unmarried...
26 May 2009 - by Sandy Starr 
A new UK law firm is the first in the country to specialise exclusively in fertility and parenting law. The firm, Gamble and Ghevaert LLP, has been founded by lawyers Natalie Gamble and Louisa Ghevaert to cater for a diverse range of families including lesbian couples, single...
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...
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