Following their separation, Lee wanted to use the embryos to become pregnant, but her ex-husband, Findley, refused and asked for the embryos to be destroyed. He was concerned that if Lee were to have children using their embryos, she might try to seek financial support from him. Lee argued that since her cancer treatment had meant that she was very unlikely to be able to conceive naturally, the embryos represented her only chance for having biological children of her own. The judge decided that the couple should be held to the terms of the consent form which they had signed before the embryos were created, which said that if they were to divorce, the embryos should be destroyed.
The case has been causing a lot of discussion in the US, but how would things work in the UK? Would the court here take the same approach?
Ultimately yes, although with a very different legal approach. In California, the law looks to what the parties agreed when the embryos were created and, as this case shows, holds them to that even if they change their minds later. What was agreed at the start, it seems, will be given significant weight.
In the UK, the law in relation to stored embryos is very different, resting on consent rather than agreement. Both the egg and sperm provider must give written consent to the storage and use of their embryos, and they can vary or withdraw their consent at any time, as long as the embryos have not yet been placed inside a woman. That means, in effect, that if a couple has embryo in storage, either party can ask for the embryos to be destroyed. A 12 month cooling off period then kicks in (during which the embryos cannot be used), but after that the embryos must be destroyed if the party who withdrew consent has not changed their mind. What was agreed at the start is irrelevant.
If this case had happened in the UK the ex-husband would therefore have been entitled to request the destruction of the embryos, and ultimately, unless he changed his mind during the cooling off period, his wishes would have been carried out. In California, the outcome was ultimately the same, although for a different reason – because this is what both parties had agreed at the start.
You can find out more about consent law in relation to embryos from our Knowledge Centre
If you are affected by these issues and would like some advice, please don’t hesitate to get in touch with us on +44 (0)20 3701 5915.
It is, and always has been, legal to enter into a surrogacy arrangement in the UK. However, the legal framework established by the Surrogacy Arrangements Act 1985 does not always make things easy.
Surrogacy agreements are not legally binding
Surrogacy agreements are unenforceable in the UK, which means that everyone relies on each other to honour the arrangement, both in respect of handing over the child and expenses and other issues. It is also against the law for a third party (including a solicitor) to negotiate a surrogacy contract for payment.
The surrogate (and her spouse) will initially be the legal parents of the child, and the intended parent/s will need to make a post-birth court application (with everyone’s agreement) to transfer parenthood to them.
Many intended parents worry about what would happen if their surrogate wanted to keep the baby; equally, many surrogates worry about what would happen if the intended parents did not assume responsibility after the birth. In fact, these problems happen rarely. However, it is always important to talk things through carefully at the outset and to set strong foundations. Even though an agreement is not legally binding, putting things in writing helps to create clarity and good communication.
Ultimately, if there is a dispute about who should care for the child after the birth, an application can be made to the family court for a child arrangements order. There are only a handful of reported UK cases of this kind: in some, care was transferred to the intended parents; in others, the surrogate has been allowed to keep the baby. Each case is dealt with individually, the court weighing up what is in the child’s best interests.
Find out more about surrogacy disputes.
Payments for UK surrogacy
It is a common misconception that it is illegal for parents to pay a UK surrogate more than her reasonable expenses. In fact, there is no offence restricting payments to surrogates in UK law. The issue is simply a consideration for the family court, which must authorise payments of more than reasonable expenses before it can make a parental order transferring parenthood to the intended parent/s.
There is no definition of reasonable expenses (nor a fixed amount as to what is allowed), so the court must decide what is reasonable in each case and in practice often takes quite a relaxed approach. There is also now a history of the High Court retrospectively authorising payments of more than expenses in international surrogacy cases. The court always wants to know that things have been handled responsibly, and there has been no exploitation or attempt to circumvent child protection law. However, there has never been a case where the court has refused to make a parental order because too much was paid.
Find out more about parental orders.
Surrogacy agencies
It is a criminal offence for third parties to receive payment for arranging surrogacy, although there is an exemption for non profit-making organisations. In practice the UK has a small handful of experienced non-profit surrogacy agencies and organisations which help intended parents and surrogates to find each other (as well as online spaces for independent matches, generally administered by volunteers).
Advertising
It is a criminal offence to advertise in the UK that you are:
- looking for a surrogate,
- willing to act as a surrogate, or
- a third party willing to facilitate the making of a surrogacy arrangement (although this last offence does not apply to non profit-making organisations).
Treatment at UK fertility clinics
Treatment at a fertility clinic in the UK for surrogacy is governed by the Human Fertilisation and Embryology Authority’s Code of Practice, which sets out the obligations of the clinic to both the surrogate, intended parent/s and any donors involved. It includes requirements for counselling, quarantining of gametes and embryos, providing legal information (including information about parenthood) and obtaining consent.
In dealing with legal parenthood, the rules in the Human Fertilisation and Embryology Act 2008 apply and the clinic must explain to everyone involved that the surrogate will be the legal mother initially and that the surrogate’s spouse will be the father/second parent unless he or she does not consent to the treatment.
If the surrogate’s spouse does not consent to the fertility treatment, there is a specific HFEA Form (the LC Form) which can be completed and signed by the surrogate to ‘show’ this. This then means that the surrogate’s spouse is not a legal parent of the child and does not need to be registered on the birth certificate or involved in the parental order application. Form LC cannot be used routinely as a way of excluding the spouse from being a legal parent but it can help establish a lack of parenthood if the spouse genuinely does not consent (e.g. if the surrogate and her spouse are separated and he or she is not involved in the surrogacy at all).
Legal parenthood forms are also relevant if the surrogate is not married (or if her spouse has been shown not to consent to the conception). In such cases, the surrogate and her intended parent/s can choose who is recorded on the birth certificate as the father or second parent. If they want the biological father to be the legal father, then no HFEA parenthood forms need to be signed. However, if they prefer for the intended mother or the non-biological father to be nominated to be the second legal parent instead, they can use HFEA Forms SWP and SPP to achieve this. The parenthood election forms must be signed correctly before embryo transfer/artificial insemination (and it is not possible to nominate the surrogate’s sibling, parent, child or aunt/uncle to be the other legal parent using these forms).
Birth registration and legal parenthood
If the child is born in England or Wales, the surrogate is responsible for registering the birth and will be registered as the ‘mother’. The surrogate can, however, register the child with the intended parents’ surname.
The surrogate’s spouse/ civil partner will be registered as the ‘father’ or second ‘parent’. This applies unless it is ‘shown’ that the surrogate’s spouse did not consent to the conception (although a genuine lack of consent must be shown – a spouse can’t simply ‘opt out’ of being the other parent).
If the surrogate is not married or in a civil partnership, then the other legal parent (one of the intended parents) can be registered as the father or second parent, provided he/ she attends the birth registration. If that intended parent is not the biological father, he/she may need to produce the HFEA forms signed before conception to confirm he or she was properly nominated to be the legal parent.
The intended parent/s then normally apply for a parental order, which permanently reassigns parenthood to them, extinguishes the responsibilities of the surrogate and her spouse, and leads to the re-issue of their child’s birth certificate. It is important to check that the intended parent/s meet the criteria for a parental order and understand the process they will need to follow. Many UK fertility clinics now require intended parents to have legal advice to confirm this.
Find out more about parental orders.
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