Surrogacy And The Creation Of The Modern Family – Family and Matrimonial – UK – Mondaq News Alerts

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This echoes a societal shift in so far as relationships, theformation of families and lifestyles are concerned. As such, thereneeds to be more emphasis on the development and evolution of thelaw and sector generally.

The use of fertility treatment and surrogacy were traditionallyused by heterosexual couples struggling to conceive but are nowalso common among the LGBT+ community. Times are changing andwhilst many more people are having children using a surrogate, thelaws around surrogacy are outdated and no longer fit forpurpose.

Surrogacy is a popular option for male same sex couples andinitial considerations will include who will be biologically linkedto the child and what type of surrogacy will be used. There aregenerally two types of surrogacy, being gestational andtraditional. With gestational surrogacy, embryos are created at afertility clinic using a donor egg (or if one of the couple istransgender, they may be able to provide the eggs) and sperm fromthe intended biological father, which are then transferred to thesurrogate. With traditional surrogacy the surrogate uses her ownegg and sperm from the intended biological father. Conception takesplace using IVF or artificial insemination.

Parents opting for surrogacy are referred to as "intendedparents". As things stand, the surrogate, regardless of whoseeggs are used, is always the first legal parent. This clearly doesnot reflect the intentions of the parties to a surrogacyarrangement. The second legal parent will depend on severalfactors.

Once the baby is born and is in the care of the intendedparents, they need to apply for a parental order within six months,which once made, transfers parentage to them. The court will onlymake a parental order if it satisfied that it is in the child'sbest interests to do so and if certain criteria are met (section 54Human Fertilisation and Embryology Act 2008). For example, one ofthe intended parents, must have a biological link to the child. Ifthe conditions are not met, the intended parents may have to findan alternative legal route to go down, such as adoption.

The Law Commission carried out a full consultation on surrogacy,which ended in October 2019 and is expected to produce a finalreport with law reform recommendations and draft bill, in 2022. Oneof the most significant issues identified is that the intendedparents are not automatically the legal parents at birth and one ofthe Law Commission's key proposals addresses this. It is likelythat the draft bill will provide for the intended parents toautomatically be the legal parents at birth, with the surrogateretaining a short period of time to object, so reversing theonus.

A change in the law is long overdue with the current legislationnot adequately providing for the child, parents or the surrogate,leaving the handing over of the baby down to trust and thereaftercreating a stressful limbo situation, prior to the intended parentsbeing granted a parental order. The legal position during thatperiod does not sufficiently reflect the reality of the situationand the intended parents may not have the legal right to makeimportant decisions for their child until the parental order isgranted. It is so important that legal advice is sought, as thereare things that can be done to mitigate the situation.

So, whilst major law reforms are on the horizon, intendedparents will in the meantime be left to navigate the current legalminefield, which is likely to add to their stress and anxiety atsuch a monumental moment in their lives. Getting the right supportand legal advice is paramount to navigate their way through.

The content of this article is intended to provide a generalguide to the subject matter. Specialist advice should be soughtabout your specific circumstances.

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Surrogacy And The Creation Of The Modern Family - Family and Matrimonial - UK - Mondaq News Alerts

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