Surrogacy

Question 1

Surrogacy Arrangements Act 1985, s 1A

Answer 1

Surrogacy agreements are not legally binding

Question 2

Are commissioning parents allowed to pay a surrogate?

Answer 2

No
- However, in practice courts will often retrospectively authorise illegal payments

Question 3

What alternative to establishing parenthood in surrogacy arrangements does Emily Jackson propose?

Answer 3

Parenthood established by intention
- Surrogate will not be forced to keep a child if the commissioning couple change their mind

Question 4

Human Fertilisation and Embryology Act 2008, s 54

Answer 4

Conditions for parental order

Question 5

Re D and L

Answer 5

Facts
- Case about Indian surrogate who could not be found to give consent

Held
-Court waived need for surrogate’s consent to parental order because it would enhance the welfare of the child

Question 6

Re X

Answer 6

Facts
- Case about couple applying for a parental order outside the 6 month window

Held
- Court waived the 6 month time limit on the parental order because it would enhance the welfare of the child

Question 7

Re Z

Answer 7

Facts
- Case about a single father applying for a parental order

Held
- Court rejected his claim

SUBSEQUENTLY:
- 2018 Remedial Order amended the HFEA to allow single people to apply for parental orders

Question 8

Re X and Y

Answer 8

Facts
- Case about a couple who paid a Ukranian surrogate

Held
- Court allowed parental order despite payments because it would enhance the welfare of the child

Question 9

Name 5 problems with surrogacy that require reform (and their solutions)

Answer 9

1. Commissioning couple are not child’s parents at birth
   - Establishing parenthood by intention would resolve this
   - Surrogate would have a defined period to contest
2. Surrogate-born children cannot access information about their conception
   - Establish a surrogacy registry
3. Law on payments is unclear in practice
   - Consultation on acceptable payments
4. Lack of safeguards for surrogacy participants
   - Establishing parenthood by intention would resolve this
5. International surrogate born children stuck abroad while waiting for documentation
   - Make process for gaining documentation quicker
   - However, scrutiny of such arrangement is still important