Donor Conception and Surrogacy Support > Surrogacy

Surrogacy Law

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Anthony Reid:
Big thanks to Natalie Gamble and Lester Aldridge for providing the following leaflet which will be of interest to members considering surrogacy.


Lester Aldridge LLP
Solicitors
Russell House
Oxford Road
BOURNEMOUTH  BH8 8EX

Direct Line:  + 44 (0)1202 786198
Fax:  + 44 (0)1202 786170
E-mail:  [email protected]
Website: http://www.lesteraldridge.com

Jo:
Thanks Natalie I am sure this will be of help to many of the members on these boards :)

Love Jo
x x x

NatGamble:
NOTE ADDED OCTOBER 2009:

You may find it useful to see the wealth of up to date information on all the legal aspects of surrogacy on our website at http://www.nataliegambleassociates.com/page/surogacy/22/.

Our website covers UK and international surrogacy, history and context of UK surrogacy law, who are treated as the legal parents at birth, citizenship and entry clearance for foreign arrangements, the parental order application process and the conditions you have to meet, protective measures you can take in the meantime (including wills and parental responsibility agreements), recent changes to the law etc. The court forms you need to apply for a parental order are also there, together with judgments on recent surrogacy cases and a copy of the law itself.

Also, if you want to contact me for help or advice, please do contact me.

Happy reading  ;D

ORIGINAL POST FROM FEB 2009:
Now we have a sticky thread on surrogacy law, I thought it might also be helpful to add a mention for international arrangements, because I am conscious that this is not covered in our leaflet above. 

I just wanted to plaster a big WARNING sign if you are thinking of doing this.  Specialist legal advice is absolutely essential before you proceed.  Do not rely on advice from clinics/ hospitals/ surrogacy agencies about how the law works.  International law is immensely complicated and they are not qualified to advise.

Here are some pointers:

If you are a UK couple thinking of using a foreign surrogate

Various foreign systems of law have different laws on surrogacy to ours, providing that the intended parents are automatically the parents at birth.  However, if you are domiciled in a part of the UK, UK law will still apply to you as the intended parents. 

If you use a foreign surrogate, this can leave you in a situation where you are not the legal parents at birth under UK law, and the surrogate is not a legal parent at birth under her home law.  Your child is then legally parentless (and also stateless for immigration purposes), which can create enormous problems, not least that you will not be able to bring your child into the UK after he or she is born. 

If you are going abroad to a place where commercial surrogacy arrangements are permitted, this could also jeopardise your rights to become the parents under UK law.  The court will also require the consent of the surrogate and her husband before giving a parental order, which can be immensely difficult to evidence if they are outside the UK.

If you proceed blindly you can end up in an irretrievable mess (including criminal liability and your child ending up in a foreign orphanage).


If you are using a UK surrogate but have foreign connections/ origins yourselves

You can only get a parental order if you are domiciled in the UK.  Domicile is a complicated and ancient legal concept and it is crucial to confirm that you qualify if you or your parents have foreign origins - being resident in the UK is not sufficient. 

Sadly, there was recently a case of a Turkish couple (not domiciled in the UK) who were in this exact situation and ended up in nine months of expensive litigation after their child was born.  They were wrongly advised by COTS about their eligibility for a parental order (though COTS' advice, based on their experience, was understandable given that the courts previously got it wrong on several occasions and awarded parental orders where they shouldn't have done).

The courts are now, however, alert to this issue.  They have also warned that they will award costs against people in a similar situation, which means that you could end up paying, not only for your own costs (likely to be tens of thousands of pounds) but also for those of the court/ state, which in this particular case were some 35,000.


Please please please get legal advice before you proceed with any kind of cross-border surrogacy arrangement (and arguably with any surrogacy arrangement).  A few hundred pounds spent at the outset could save you thousands - maybe even hundreds of thousands - of pounds if you get it wrong.

Natalie

OD2:
Natalie,

Thanks so much for all this incredibly useful information.  Would it be ok if I posted it on the Surrogacy UK site, so there's a greater chance of more people benefiting from it?

F

NatGamble:
I would be delighted - please do. 

If you don't mind including my contact details, so anyone who needs advice knows where to find me, that would be fabulous (we're not currently on the list of recommended solicitors on SUK, which we really should be!).

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