How does surrogacy work?

By Francesca Steyn RGN and Beverley Jones Partner at JMW LLP Solicitors

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This lesson aims to give an overview of the surrogacy journey for the Intended Parents (IP’s) and the Host surrogate. It will also cover the legal aspects of a surrogacy arrangement including applying for a parental order, legal parenthood and parental responsibility. To facilitate and provide guidance to people from the LGBTQ (lesbian, gay, bisexual, transgender, and queer/questioning) community as well heterosexual people accessing surrogacy services.

The first known child born through a surrogacy arrangement was in 1985. Since then hundreds of children have been born worldwide through surrogacy arrangements and the Human Fertilisation and Embryology Authority published their date report in 2017 which highlighted that in 2016, there were 262 registered surrogates in the United Kingdom. In 2010 gay men who were civil partners, married or in an enduring relationship were able to apply for a parental order of a child born through surrogacy. More information regarding parental orders will be provided by Beverley Jones later on in this module.

Prior to all surrogacy treatments, there are a number of investigations and tests that people accessing fertility services will be required to complete before the treatment actually takes place. These include screening the intended parents (if they are providing their gametes (eggs and sperm) for sexually transmitted infections, blood borne viruses and blood karyotype (genetic screening) and of course performing a semen analysis to assess the sperm of the male intended father. The surrogate will also be required to complete some of the tests outlined above and in addition, a trans-vaginal ultrasound of the uterus (scan) to asses the uterine cavity to ensure that there are no problems that could potentially cause a problem for her to conceive or to maintain a healthy pregnancy and carry a child to full term.

In addition to investigations and tests, it is also a mandatory requirement from the UK regulator (HFEA) that all parties are offered implications counselling with a specialist fertility counsellor. Some clinics may impose a local policy that requires all parties to attend mandatory implications counselling. Specialist legal advice will also be recommended and in most cases, required. A surrogacy coordinator (often a fertility nurse specialist) based at the clinic will provide you with clear guidance on the required consents and documents prior to starting your treatment.

There are two main routes to parenthood through surrogacy: Host surrogacy and straight surrogacy.

HOST SURROGACY

This is often the most popular type of surrogacy that is carried out in the UK through an HFEA licensed fertility centre. Host (also known as gestational or partial surrogacy) is when the surrogate doesn’t provide her own egg to achieve the pregnancy. In such pregnancies, embryos are created in vitro (IVF) (figure 1) and transferred into the uterus of the surrogate using the gametes of at least one Intended Parent (IP), plus the gametes of the other IP or a donor, if required. The egg donor or female IP will undergo a cycle of stimulation with some fertility medication to stimulate the ovaries to respond and produce a number of follicles. This cycle will be tracked by ultrasound scans to monitor the growth of the follicles and once the follicles are at the required size (approx. 18mm) we will trigger the release of the eggs from those follicles and perform an egg collection (a surgical procedure which will extract the eggs from the ovaries in order to fertilise them in the lab)

This is often the preferred method for IPs who have not yet found their surrogate. We will create embryos in vitro and vitrify (cryopreserve) them usually at the blastocyst stage and store them until we are ready to perform a frozen embryo transfer cycle for the surrogate. This can take place in a completely natural cycle or with the use of medication.

   Figure 1

Figure 1

STRAIGHT SURROGACY

Straight (also known as genetic, full or traditional) surrogacy is when the surrogate provides her own eggs to achieve the pregnancy. One of the IP’s (or the male partner in a heterosexual relationship) provides a sperm sample for conception through intrauterine Insemination (IUI) at the clinic. The sperm is prepared and injected into the uterus of the surrogate at the time of the surrogates ovulation. This is a relatively straight forward procedure and can be carried out on a completely natural cycle for the surrogate or with some medication that will stimulate the ovaries to grow and mature follicles (fluid filled sacs that may contain eggs), ultrasound scans will be performed during the cycle to track the growth and once the follicles are at the right measurement for ovulation (usually around 18mm) then we will either wait for the ovulation to occur naturally or trigger the ovulation with a medication known as HCG.

SAME SEX SURROGACY

Surrogacy for same sex male couples is increasing in numbers worldwide. Same sex male couples will undergo treatment with a surrogate and egg donor (host surrogacy) to achieve their family. One of the intended fathers will provide sperm to create embryos in vitro (IVF) and those embryos will be transferred into the uterus of the surrogate. The second intended father can also provide sperm to create embryos that could be cryopreserved and stored for sibling use.

UK SURROGACY CRITERIA

Surrogacy in the UK is completely altruistic and surrogates can only be reimbursed reasonable expenses. The following should be evident to the clinic for couples when planning a surrogacy arrangement:

  • That there is a clinical need for surrogacy to take place, for example absence of a uterus, recurrent miscarriage

  • That at least one of the intended parents is domiciled in the UK

  • That at least one of the intended parents has a genetic link to the child (has provided the eggs or sperm)

Further criteria will be considered by the Court when applying for a Parental Order (please see below for more details).

GUIDANCE

In 2018, two key pieces of guidance were issued by the department of health and social care surrounding surrogacy and surrogate births. The first piece of guidance was aimed at healthcare professional who are involved in the ante-natal and post-natal care of surrogates, intended parents and their children and aimed to give clear guidance on the correct processes and pathways to follow. The second piece of guidance is aimed at intended parents and surrogates themselves and gives clear information on how to proceed and create a family via means of surrogacy.

Both publications can be found at https://www.gov.uk/government/publications/having-a-child-through-surrogacy

THE LAW

It is entirely legal to enter into a surrogacy arrangement in the UK. The relevant piece of legislation that governs surrogacy in the UK is the Human Fertilisation & Embryology Act 2008 often referred to as the HFEA. Confusingly, however, it is still illegal in the UK to enter into a commercial surrogacy agreement. This means that the intended parents cannot currently pay (other than for reasonable expenses incurred) anybody for a surrogate arrangement.

The legislation provides the framework and criteria to enable the child(ren) born as a result of a surrogacy arrangement to be treated in law as the child(ren) of the applicants/intended parents.

THE STARTING POINT

Parental Responsibility is defined as all of the rights, duties, powers, responsibilities and authority which by law a parent of a child has in relation to the child.

All children must be registered and receive a birth certificate within 42 days from the date of birth. Until the birth is registered the only person with parental responsibility for the child will be the surrogate mother.

There is space on the birth certificate for up to 2 parents to be registered as the child’s legal parents.

The starting point in ALL cases is that the surrogate will initially be treated in law as the child(ren’s) legal mother. She will be registered on the birth certificate as the child’s mother. This is true even if the surrogate is not biologically related under a host surrogacy arrangement.

If the surrogate is married or has a civil partner then the other party to the marriage will also be treated in law as the child’s other parent unless it is shown that he/she did not consent to the treatment. This husband/wife/civil partner will also not be biologically related to the child.

If the surrogate is not married or in a civil partnership, there is a choice as to who is registered as the second parent. In practice this is often the biological mother/father or other intended parent.

HOW THE LAW CAN CHANGE PARENTHOOD

S54 of the HFEA allows intended parent’s to apply for a Parental Order subject to meeting strict criteria.

A Parental Order changes the child’s parents in the eyes of the law and if successful the Court will make an order providing for the child to be treated in law as the child of the Applicants (intended parents). A new birth certificate will be issued and the surrogate will no longer have parental responsibility for the child.

The child’s parents will be the IPs and it will be at the IP’s discretion as to whether the surrogate plays any role in the child’s life. It will be in law as if the child was born to the IPs. They will be the only people with parental responsibility for the child(ren).

THE CRITERIA

It is important that all IPs and surrogates understand the criteria the Court consider when considering an application for a Parental Order. Most clinics will refer both IP’s and surrogates for independent legal advice to ensure they are all aware of the relevant criteria before embarking on their surrogacy journey. The criteria can be summarised below:

  1. The Application must be made by two Applicants who must be in a committed relationship

  2. The Application must be made within six months beginning with the day on which the child is born

  3. The child must live with the Applicants

  4. Either or both Applicant’s must be domiciled in the UK

  5. Both the Applicants must be aged over 18

  6. The child must be biologically related to one of the Applicants

  7. The surrogate must have provided freely and with the full understanding of what is involved agreed unconditionally to the making of an order. The surrogate cannot give her consent until six weeks after the child’s birth

  8. No money other than reasonable expenses has been paid by the Applicant’s for or in consideration of the making of the Order or the handing over of the child unless authorised by the Court.

THE COURT PROCESS

IP’s apply to the Court by completing court form C51 (click here to access). This is submitted to the child’s local family court.

The Court will issue the application and send a copy to the surrogate and her husband/wife.

A specialist CAFCASS officer will be appointed to prepare a report for the Court. A CAFCASS officer is an officer appointed by the Court on behalf of the child(ren). They are the eyes and ears of the Court and are usually very experienced in dealing with Children matters. They provide a voice for the child(ren) and represent the child(ren)’s best interests.

The CAFCASS officer will meet with the child, the intended parents and the surrogate. They will consider the criteria and ensure the surrogate has given the relevant consent and all parties understand the legal implications of the application and that all parties have entered into the agreement fairly and not under duress.

The CAFCASS officer will then write a report to the Court recommending whether or not a parental order should be made. In most cases the answer is very simple and a very easy recommendation. There are instances however when the CAFCASS officer is concerned that some or any of the above criteria have not been met. It is for this reason that it is in everybody’s best interest to understand the criteria before embarking on the surrogacy journey.

If straightforward the Court will list the matter and invite the IPs to bring the child whereby a lovely hearing/ceremony will take place making the IPs the child’s legal parents there and then. This is similar to an adoption hearing.

It is only if there are any complicating factors ie. criteria not met or international issues that the matter has to proceed to the High Court.

LAW UNDER REVIEW

The Law is currently under review in the UK and likely to change for the better in the not too distant future.

In 2016, the President of the High Court Family Division declared that UK surrogacy law was not compatible with the human rights of a single father and his child. He is the biological father who had entered into a surrogacy arrangement.

The law in the UK does not prohibit surrogacy to single parents but does prevent them from applying for a Parental Order meaning that the surrogate will remain the child’s legal mother. This position is unsatisfactory for a number of different reasons and is going to change.

It is anticipated the law will allow single parents to apply for and obtain a Parental Order. It is also hoped that further changes will be considered to allow people to properly enter into surrogacy agreements as records of their intentions with the benefit of legal advice.

Many people are campaigning for parental orders to be made during pregnancy to make the intended parents the child’s legal parents from birth, whilst others are petitioning for surrogates to receive fair payment more than just reasonable expenses. How far the law will go in terms of these changes remains to be seen but one thing that is certain is that a parental order once granted provides legal certainty to all parties but particularly for a child born as a result of a surrogacy arrangement.

FOR FURTHER ADVICE, CONTACT:

Francesca Steyn RGN and Beverley Jones Partner at JMW LLP Solicitors

Francesca Steyn is the Head of Nursing at the CRGH (Centre for Reproductive and Genetic Health) based in London and has a specialist interest in gamete donation and surrogacy. She is a steering committee member on the Royal College of Nursing (RCN) Fertility Nursing Forum and is also an active member of the Senior Infertility Nurses Group (SING). Francesca has co-authored national guidance and publications on surrogacy, fertility education and fertility preservation and has presented both nationally and internationally on fertility nursing care and best practice.

Bev is Partner and Head of the Liverpool Family Office at JMW LLP Solicitors prior to that Beverley was a partner in law firm DWF LLP leading the Family law team in Liverpool. She is recognised within the Legal 500 and Chambers & Partners (Directories of the best lawyers in the UK) as a Band 1 Family Lawyer as active on advising couples on surrogacy issues.

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