Legal issues surrounding surrogacy
Both couples (commissioning and host) should take independent legal advice. Although contracts and agreements of surrogacy are not binding in law, most infertility clinics would insist on obtaining written consents from both parties before accepting them for treatment.
It is important for couples to recognize that the woman who carries the child is the mother. Consequently, a host can not be compelled to hand over the child. Similarly if the commissioning couple decide to reject the child, it remains the responsibility of the host. In summary, the surrogacy arrangements are not enforceable by law in the UK.
All couples contemplating surrogacy must be aware of the small possibility of bonding between the host and the child and that she can change her mind. Also, the physical bond can get closer as the pregnancy advances and strengthens from the birth of the child.
Like any pregnancy, it is impossible to predict the outcome. If a fetal abnormality is diagnosed during the pregnancy. By law, only the woman who is pregnant can give consent to termination of pregnancy. Would the genetic couple accept an abnormal child?
The genetic couple has a responsibility toward the host. No pregnancy is without risk. Also the welfare of the host, her family must be protected. This is sometimes carried out by arranging an insurance policy. A guardian should be appointed to take care of the child if the commissioning couple predecease the child.
Surrogacy arrangements will continue to require good will on both parties and the genetic couple will have to seek a change in parentage through the court. Section 30 of the 1990 Act and The HFE Act 2008 in order to issue a parental order, the following conditions must be applied.
- The genetic (commissioning) couple must be married and over 18 years old.
- One or both commissioning partners must be genetically related to the child.
- One or both commissioning partners must be a UK resident.
- The child must be in their care.
- The host couple must have given their consent.
- No money must have been paid.
- Application for parental order should be made when the child is over 6 weeks old but less than 6 months old.
In April 2010, the Human Fertilisation and Embryology (HFE) Act 2008 part 3 in the United Kingdom came into effect, giving same sex and unmarried couples the same legal rights as married hetrosexual couples to apply for parental order. Surrogact rules were reformed in 2019 to allow single father to father children through surrogacy.