The recently reported case of Re Z (a child) [2024] EWFC 304 provides an important reminder to those who are thinking about surrogacy arrangements to carefully consider the arrangements, consequences and implications of that arrangement. This is important for the adults involved and more importantly, for any child born as a result of such an arrangement.
The case
The Judge, Mrs Justice Theis DBE in her Judgment, outlined that “the lack of care in some arrangements and the real risks it exposes the intended parents, surrogate and any child to is very concerning.”
The Judge outlined that before any surrogacy arrangement is embarked upon, there needs to be clarity about:
- what is proposed,
- for the written agreement to clearly provide for the essential arrangements, and
- that the relevant legal framework is understood at each stage
The Judge considered that the key issues that anybody embarking on a surrogacy arrangement, particularly one from a foreign jurisdiction should consider are:
- “What is the relevant legal framework in the country where the surrogacy arrangement is due to take place and where the child is to be born? Put simply, is such an arrangement permitted in that country?
- When the child is born will the intended parents be recognised as parents in that country, if so how? By operation of law or are the intended parents required to take some positive step and, if so, what steps need to be taken and when (pre or post birth)?
- What is the surrogate’s legal status regarding the child at birth?
- If the surrogate is married at the time of the embryo transfer and/or the child’s birth what is the surrogate’s spouse’s legal status regarding the child at birth?
- If an agency is involved, what role do they play in matching the surrogate with the intended parents?
- What information, preparation or support has the surrogate had about any proposed surrogacy arrangement?
- Does the surrogate speak and/or read English? If not, what arrangements are in place to enable her to understand any agreement signed?
- Will the intended parents and the surrogate meet and/or have contact before deciding whether to proceed with a surrogacy arrangement?
- When will the agreement between the intended parents and surrogate be made, before or after the embryo transfer, and what are the reasons for it being at that time?
- What arrangements are proposed for contact between the intended parents and the surrogate during the pregnancy and/or after the birth? For example, is it only via the agency or can there be direct contact between the intended parents and the surrogate.
- Which jurisdiction will the embryo transfer take place and which jurisdiction will the surrogate live in during any pregnancy?
- Can the jurisdiction where the child is to be born be changed at any stage and, if so, by whom and in what circumstances?
- What nationality will the child have at birth?
- Following the birth of the child what steps need to be taken for the child to travel to the United Kingdom, what steps need to be taken to secure any necessary travel documentation for the child and how long does that take?
- Will the intended parents need to take any separate immigration advice to secure the child’s travel to the United Kingdom and what is the child’s status once the child has arrived in this jurisdiction.
- Finally, keeping a clear and chronological account of events and relevant documents is not only important for the purposes of a parental order application but also, importantly, retains key information regarding the child’s background and identity.”
The Judge empathised the importance for intended parents to seek legal advice from a solicitor who specialises in surrogacy law before starting such a journey, especially if the surrogacy involves another jurisdiction.
This case was particularly complex as it involved jurisdiction issues for both the intended parents and surrogate. The court made a parental order in the case which transferred the legal parenthood from the surrogate to the intended parents.
Sarah Bell is a partner at Stephens Scown and she heads the Children team in our Truro office. If you wish to discuss anything raised in this article please contact Sarah or the team via email – enquiries@stephens-scown.co.uk or call 0345 450 5558.