NGA advises Corrie on surrogacy

We have been working with Coronation Street on their surrogacy storyline (the first in a mainstream UK soap) which has come to a head this week, with surrogate Tina changing her mind about handing over Gary and Izzy’s baby.

We have been helping Corrie to get the law right, but what would happen in reality?  Do surrogates often change their minds, and what is the legal position if they do, particularly if it is not their biological child?

UK law says that the surrogate is the legal mother, whether or not she is not the biological mother.  The intended parents can apply to court for a new birth certificate after the birth - a process which ends the surrogate’s motherhood – but only with her consent.  If she withholds it, the surrogate remains the legal mother, although the family court can order that the child should live with the intended parents anyway.

But the legal position rarely fits with what happens on the ground – in reality, surrogacy arrangements go wrong surprisingly rarely.  The structure of the law would make you think that surrogates change their minds often, and need to have their rights protected.  In reality, the picture is very different.  There have now been over 1,000 parental orders granted in the UK (surrogacy cases with no dispute) and only 2 reported cases where a surrogate has sought to keep the baby.  In both cases, the surrogate was also the biological mother, and in only one of them did she win her case.

So what would happen if a gestational surrogate like Tina (who is not biologically connected) wanted to keep a surrogate baby?  The answer is that we just don’t know because it has never yet happened in the UK.

And what will happen with Tina, Gary and Izzy?  Well, we know, but we aren’t allowed to tell you…

There is more information about surrogacy law on our website.  You can also read what Natalie thinks about whether surrogates should still have an absolute right to change their minds under UK law here.

HFEA to update surrogacy guidance to UK clinics

The Human Fertilisation and Embryology Authority has voted to update the guidance it gives to UK fertility clinics on surrogacy. The new Code of Practice will:

• clarify what UK clinics should say to surrogacy patients, and
• update clinic procedures and forms for surrogacy.

The HFEA voted to make these changes (following advice from NGA and its own lawyers) at its meeting on 20 March 2013 and will now undergo a period of consultation on the practicalities, before the new Code of Practice is introduced on 1 October 2013. This includes a workshop for clinics and professionals practising in surrogacy, to be held at the HFEA on 30 April 2013.

We congratulate the HFEA on a very sensible decision, which will mean clearer guidance for parents and clinics dealing with increasing numbers of surrogacy cases. In particular, it will be made clear that where a surrogate is unmarried, one of the intended parents (whether gay or straight, and whether or not biologically parent) can be named on the child's initial birth certificate together with the surrogate.This approach will make the HFEA's guidance entirely consistent with longstanding practice at register offices and in the family courts.

You can find out more about the HFEA meeting on 20 March here, and there is more on our website about surrogacy law. 

International surrogacy - UK High Court judge parenthood to non-British dads

The decision in Re A & B (Parental Order: Domicile) represents another landmark ruling for NGA – a parental order having been granted to a non-British gay couple following the birth of their son through Indian surrogacy last year.

The case not only clarifies the law for foreign but UK-resident parents conceiving through surrogacy, but also shows how same sex parents are being drawn to the UK’s open culture and law. We were proud to have supported the parents in this case through to successful conclusion, and once again to have helped make new law.

What happened?
The parents, who are American and Polish respectively, moved to the UK as a couple in 2008 (having registered their domestic partnership in California four years earlier). They were initially attracted to the UK by our unrivalled equal laws and gay rights – something they were not afforded in their respective home counties. Having decided to start a family, they found a surrogate through an agency in India and were delighted when their son was born in 2012. On their return to the UK they sought help from NGA to establish the non-biological dad’s parental status, which led to their application for a parental order (the legal solution following surrogacy, enabling both intended parents to become their child’s legal parents under UK law).

What does the law say?
In order to be eligible for a parental order, at least one of the intended parents must demonstrate to the court’s satisfaction that they are ‘domiciled’ in a part of the UK. Domicile for these purposes is more complex than simply where a person lives – it comes down to where their permanent roots and allegiances lie. This particular criterion (one of a number of strict requirements attached to the parental order) is designed to prevent foreign parents ‘forum shopping’, by using the UK court to grant them a more favourable legal solution than their own country might. The parents in this case therefore had to show that they had made the UK their permanent home and that, notwithstanding their American and Polish citizenship status, they had cut their ties with the US and Poland and did not intend to return.

What did the court consider?
In order to establish whether the parents in this case had met this high bar, the judge considered a number of factors in detail. She was particularly assisted by the parents’ statements, which outlined in detail their connections here (including that they ran a UK based company and both intended to apply for British citizenship at the earliest opportunity) and their affection for the UK including their very personal reasons for making it their home and the place that they raise their family, away from the discrimination abundant in their home countries. The judge went on to quote one of their reasons for not returning to the US, “We will never return and raise our son in a society in which schools may censor him from talking about his family”, as a factor which bolstered their contentions.

Why is this case significant?
Mrs Justice Theis reiterated in this case the importance, for non-British parents applying for a parental order, of demonstrating a clear intention to make the UK their permanent home – the court otherwise being powerless to make a parental order. The judge was also assisted by an independent investigation of the circumstances surrounding domicile by CAFCASS Legal, who found that the parents had abandoned their respective domicile of origins in favour of English domiciles of choice. This case (in addition to Z v C [2011]) provides helpful guidance for future non-British parents through surrogacy who hope to apply for a parental order.

What you need to know if you are not British, or are British and based abroad, and considering applying for a parental order
Domicile is a far-reaching principle of law and far from contingent on just one factor. Having dealt with the key cases which have tested the law on this, we would be happy to advise you on your eligibility to apply for a parental order, no matter what your circumstances. You can contact us here, or alternatively there is more information about domicile on our website.

Natalie on the Today Programme – who should have the rights where a surrogate baby is disabled?

Natalie was interviewed by James Naughtie on this morning’s BBC Radio 4 Today Programme about surrogacy. The programme covered a US surrogacy case which hit the news after a US surrogate mother refused to terminate her pregnancy at 21 weeks when it was discovered that the baby would be born severely disabled.

In the UK, surrogacy law gives all the rights to the woman who carries the pregnancy – she is the legal mother. Although a case like this has never happened in the UK, if it did there would be no doubt (as there was under US law) that the surrogate mother would hold all the cards. But is this the right approach?

In practice, we know on the ground that surrogacy disputes are incredibly rare. For the vast majority of cases, it would make more sense for the intended (biological) parents, rather than the surrogate, to have legal responsibilities much earlier – it’s what everyone involved wants, and the long delay transferring parenthood leaves children vulnerable for far too long. And where there are disputes, we need a more sophisticated approach to balancing the interests of all involved – surrogate, parents and child.

The real lesson of this case is that we can avoid problems like this by giving the right support at the start. Parents and surrogates need to communicate clearly, and those with radically mismatched views on termination should not proceed together. That is why it is so crazy that UK surrogacy law goes out of its way to deny those going into surrogacy arrangements the support they need. Under UK law, surrogacy contracts are unenforceable and illegal for lawyers to draft, and professional matching and brokering services are prohibited by criminal law. It’s time for that to change.

There is more information about surrogacy law and our campaigning work on our website.