Posted on Aug 06, 2014
This week, news broke of an Australian couple who had paid a Thai lady to act as a surrogate mother for them. Pattharamon Chanbua, age 21, agreed and was reported to have been paid approximately £6500 from a surrogacy agency to carry the child. During the pregnancy, it emerged that she was in fact carrying twins and she was offered a further £930 for that child.
However, shortly afterwards, doctors discovered that one of the babies had Down's Syndrome and after giving birth, the couple took the baby girl back to Australia, leaving her twin brother behind in Thailand. The couple have stated that they had no knowledge of the boy.
Despite being of very limited means herself, Pattharamon has taken responsibility for baby Gammy, who was also born with a congenital heart condition, and will raise him as her own. An online fundraising campaign has been set up and has already raised £125,000 to help fund baby Gammy's medical bills.
This story has made international headlines and has caused uproar, especially in Australia, where questions have been raised about the legal and ethical issues surrounding surrogacy. So what is the legal status of surrogacy in the UK?
Whilst surrogacy itself is not illegal in the UK (and neither is it illegal for a UK couple to use a surrogate who lives outwith the UK), it should not be entered into lightly and it is crucial that legal advice is obtained from the outset.
Where a couple are unable to carry a child themselves, a surrogacy arrangement can be entered into. Examples include where the couple may have fertility problems, where a same sex male couple wish to have a child or where a woman has had a hysterectomy and wishes a friend/family member to carry the child for her.
The surrogacy arrangement must be entered into before the surrogate mother carries the child and is done with the intention that she will hand the child over to the parents after giving birth. However, surrogacy arrangements cannot be legally enforced in the UK and as such, they are based on trust.
Whilst there are some surrogacy agencies in the UK, those are unregulated. It is illegal in the UK for money or other benefits to be given or received by either applicant, other than reasonable expenses. However, in other countries such as Thailand, commercial surrogacy is legal, although it is usually unregulated.
What happens after birth?
What many people do not appreciate is that in the UK, it is the surrogate mother who will have parental rights and responsibilities in respect of the child once it is born and not the "parents." If she is married or in a civil partnership, then her husband/civil partner will also automatically have those rights.
If a surrogate refuses to hand over the child after giving birth, then she cannot be forced to. The parents could take the surrogate mother to court to seek residence (custody) or contact (access) to the child but there is no guarantee that the court will grant them that.
Even where there are no complications and the surrogate hands the child over, the parents still need to apply to the court to be legally recognised as the child's parents. In Scotland, this is done by applying to the court for a Parental Order or to formally adopt the child (depending on the circumstances of the case). By that process, the surrogate will lose her parental rights and responsibilities for the child. Until that happens, the parents have no automatic legal rights in respect of the child.
There are certain requirements which must first be met before the parents can do so:
1. The application must be made timeously and normally within 6 months of the child’s birth;
2. The surrogate mother will need to provide her consent (as will her husband or civil partner);
3. The child must be living with the parents at the time the application is made;
4. The applicants must be husband and wife, civil partners of each other or two people who are living in an “enduring family relationship”;
5. Both applicants must be 18 years old; and
6. At least one of the applicants must be domiciled in the UK.
When considering whether to grant the application, the welfare of the child throughout its life is the court’s paramount consideration.
If a couple choose to use a surrogate who is based out with the UK, then they need to be aware that there is no guarantee that they will be permitted to bring the child back to the UK after it is born. Given the six month window for applying to the Scottish courts, it is crucial that expert immigration advice is obtained from the outset, before entering into a surrogacy arrangement. This will ensure that any necessary visa/passport for the child can be applied for without delay, to prevent the child potentially being refused entry to the UK.
Amanda Wilson is an Associate in Thorntons Family Law team