ANNE-MARIE HUTCHINSON, OBE, A PARTNER WITH LAW FIRM DAWSON CORNWELL, DISCUSSES A FEW
OF THE ISSUES AND CONSIDERATIONS FACING SAME- SEX COUPLES WHO ARE CONSIDERING SURROGACY…
Increasingly,
same-sex partners are taking steps to provide a secure and loving family base
for children.
There are many variations in the form the arrangements can take. Some will involve the couple (or one of them) becoming parents, while others will not. The Human Fertilisation and Embryology Act 2008 came fully in force on 6th April 2010. The Act sets out specific rules on the acquisition of parental status for those in male and female same-sex partnerships with children born by surrogacy and assisted reproduction. It determines who is a parent and who can be named on the birth certificate. The Act also allows both civil partners and those in “an enduring family relationship” to apply for a Parental Order for children born to a surrogate.
There are two types of surrogacy: traditional surrogacy, where the child is the genetic child of the surrogate mother, and gestational surrogacy, where there is no such genetic connection.
Whilst unusual, there may be situations where female partners will require a surrogate to carry the genetic child of one of them. It is illegal to advertise for a surrogate – or to advertise a willingness to become a surrogate. It is illegal for any person (but not the surrogate and commissioning parents) to make arrangements or negotiate a surrogacy arrangement on a commercial basis. Organisations that assist with surrogacy arrangements in England are strictly controlled as non-profit entities. The most important legal aspect is the acquisition, by the commissioning parents, of legal parenthood. Under English and nationality law arise. It will be necessary to obtain permission for the child to enter the UK for immigration purposes. Depending on the country concerned, it is not always a straightforward exercise and expert legal advice is usually required.
Problems in obtaining a Parental Order are most likely to arise where a commissioning couple have misunderstood or breached the provisions of the HFEA or have immigration problems.
It is inevitable that there will be a number of reported cases coming before the courts for determination on the provisions, implementation and consequences of the HFEA 2008 as the case law develops. law the birth mother always has parental responsibility for the child. If she is married or in a civil partnership, her partner will be treated as the other parent. The HFEA provides the means by which the parental responsibility of the birth mother (and her partner) is removed and all parental rights are vested in the commissioning couple equally. This is called a Parental Order. In granting a Parental Order the court has to be satisfied that:
A reporting officer will be appointed by the court to undertake a comprehensive enquiry into the living arrangements for the child and the payments made to the surrogate.
As has been the subject of a recent UK court case, surrogacy agreements in England are not binding and cannot be enforced. To avoid uncertainty, many commissioning parents make overseas arrangements in a country where they are enforceable. With overseas arrangements, complex issues of parentage, immigration
About Anne-Marie Hutchinson, OBE
Anne-Marie Hutchinson, OBE, is a partner at Dawson Cornwell – official legal partners for The Alternative Family Show 2011. Dawson Cornwell is a specialist private client and family law firm. The firm is uniquely qualified to provide advice in all aspects of the law appertaining to same-sex relationships from inception to dissolution. It is widely recognised for its expert, sensitive and discreet approach. Anne-Marie is a world-renowned expert in the field of children issues. She regularly represents same-sex partners. She has expertise in the law of surrogacy, adoption and child disputes. In 2002, Anne-Marie was awarded the OBE in recognition of her services to International Child Abduction and Inter-country Adoption. In 2010 she received the International Bar Association Outstanding Woman’s award. www.dawsoncornwell.co.uk
There are many variations in the form the arrangements can take. Some will involve the couple (or one of them) becoming parents, while others will not. The Human Fertilisation and Embryology Act 2008 came fully in force on 6th April 2010. The Act sets out specific rules on the acquisition of parental status for those in male and female same-sex partnerships with children born by surrogacy and assisted reproduction. It determines who is a parent and who can be named on the birth certificate. The Act also allows both civil partners and those in “an enduring family relationship” to apply for a Parental Order for children born to a surrogate.
There are two types of surrogacy: traditional surrogacy, where the child is the genetic child of the surrogate mother, and gestational surrogacy, where there is no such genetic connection.
Whilst unusual, there may be situations where female partners will require a surrogate to carry the genetic child of one of them. It is illegal to advertise for a surrogate – or to advertise a willingness to become a surrogate. It is illegal for any person (but not the surrogate and commissioning parents) to make arrangements or negotiate a surrogacy arrangement on a commercial basis. Organisations that assist with surrogacy arrangements in England are strictly controlled as non-profit entities. The most important legal aspect is the acquisition, by the commissioning parents, of legal parenthood. Under English and nationality law arise. It will be necessary to obtain permission for the child to enter the UK for immigration purposes. Depending on the country concerned, it is not always a straightforward exercise and expert legal advice is usually required.
Problems in obtaining a Parental Order are most likely to arise where a commissioning couple have misunderstood or breached the provisions of the HFEA or have immigration problems.
It is inevitable that there will be a number of reported cases coming before the courts for determination on the provisions, implementation and consequences of the HFEA 2008 as the case law develops. law the birth mother always has parental responsibility for the child. If she is married or in a civil partnership, her partner will be treated as the other parent. The HFEA provides the means by which the parental responsibility of the birth mother (and her partner) is removed and all parental rights are vested in the commissioning couple equally. This is called a Parental Order. In granting a Parental Order the court has to be satisfied that:
- One or both of the commissioning couple are domiciled in England.
- At least one of the commissioning couple is a genetic parent.
- All persons with legal parenthood have given full and informed consent after the child is six weeks old.
- The parental order has been applied for before six months from birth.
- No more than reasonable expenses have been paid to the surrogate. However, where expenses are found to be more than ‘reasonable’ a Parental Order can still be made if the court finds that it is in the best interests of the child to do so.
A reporting officer will be appointed by the court to undertake a comprehensive enquiry into the living arrangements for the child and the payments made to the surrogate.
As has been the subject of a recent UK court case, surrogacy agreements in England are not binding and cannot be enforced. To avoid uncertainty, many commissioning parents make overseas arrangements in a country where they are enforceable. With overseas arrangements, complex issues of parentage, immigration
About Anne-Marie Hutchinson, OBE
Anne-Marie Hutchinson, OBE, is a partner at Dawson Cornwell – official legal partners for The Alternative Family Show 2011. Dawson Cornwell is a specialist private client and family law firm. The firm is uniquely qualified to provide advice in all aspects of the law appertaining to same-sex relationships from inception to dissolution. It is widely recognised for its expert, sensitive and discreet approach. Anne-Marie is a world-renowned expert in the field of children issues. She regularly represents same-sex partners. She has expertise in the law of surrogacy, adoption and child disputes. In 2002, Anne-Marie was awarded the OBE in recognition of her services to International Child Abduction and Inter-country Adoption. In 2010 she received the International Bar Association Outstanding Woman’s award. www.dawsoncornwell.co.uk
